The fact that formal rules of evidence are rigorously adhered to in the judicial forum does not necessarily mean that such rules should be applied in the context of labor arbitration. In the following article, Michael Winograd suggests that "the goals and nature of labor arbitrations render formal rules of evidence undesirable, if not unworkable." Giving practical examples, Winograd offers a detailed account of the rules and their functions and demonstrates why he feels they are not suited to the labor arbitration forum.
Most, if not all, would agree that labor arbitration is an adjudicatory process. Despite the informalities and the sometimes unique interests that help govern, and often dictate, the course of its development, labor arbitration is a form of dispute resolution in the purest sense of the concept. At its core, labor arbitration involves the finding of disputed facts and/or the interpretation of mutual agreements, and, ultimately, the handing down of a decision.
Although the evolution of labor arbitration stems, as does that of any formal judicial forum, from an effort to systematically resolve disputes, its goals and nature remain markedly distinct. Where courts have found that efficacy lies in the rigid adherence to formal evidentiary laws, a traditionally accepted "legal premise [of ...labor arbitration...is that `rules of evidence...need not be observed'...unless the parties have mutually agreed to the contrary."1
This article explores the validity of this well-established tenet of labor arbitration by considering what, if any, the role of external evidentiary law should be in seeking to maximize the efficacy of labor arbitrations.
The Goals and Nature of Labor Arbitration: The Traditional Shunning of Formal Rules of Evidence
Although an arbitration involving a company and a union is an adjudicatory process, the goals of its participants are quite different than those of parties involved in a formal judicial proceeding. As a general proposition, "[a]rbitration is the referral of a dispute to one or more impartial persons for final and binding determination... [which] is designed to be private, informal, quick, practical, and economical."2 In addition, the relative positions of parties to a labor arbitration are not those of adversaries, but rather those of business partners who must maintain a working business relationship long after the conflict at issue has been resolved.
Accordingly, parties to an arbitration have, as a basic tenet, chosen informality to be "the hallmark of arbitral proceedings."3 Arbitrations have thus traditionally avoided adherence to, or even consideration of, formal rules of evidence. Instead, arbitrators have often sought to create a more private and relaxed forum where workers and managers feel comfortable and satisfied convening and arguing their respective positions as best they-and not their lawyers-can.
The result is that, as one 19th century scholar noted, arbitrations more closely resemble informal familial dispute resolutions:
[Rejecting] the folly of [legal] learning...in the bosom of his family...the father...when any dispute arises among those who are dependant [sic] on him...calls the interested parties before him; he allows them to give evidence in their own favour; he insists on an answer to every question, even though it should be to their disadvantage;...he does not refuse any witness; he hears every one, reserving to himself to appreciate the worth of the testimony of each; he allows each of them to give his narrative at once, and with all the circumstances which may be necessary to give connexion to the whole. 4
Maintaining a Working Relationship
Unlike the relationship between litigants in a courtroom, the relationship between a company and a union is necessarily a continuing one. The parties come into and leave labor arbitrations as partners to a business that absolutely depends upon their peaceful and productive co-existence. Thus, because the parties to a labor arbitration are less adversarial, winning the arbitration at all costs can often actually be a loss for both sides. In addition, the costs of engaging in trench warfare against each other aside, the mutual goal of deriving therapeutic value from the arbitration often supercedes the goal of actually winning the debate:
One of the fundamental purposes of an arbitration hearing is to let people get things off their chest, regardless of the decision. The arbitration proceeding is the opportunity for a third party, an outside party, to come and act as a sort of father confessor to the parties, to let them get rid of their troubles, get them out in the open, and have a feeling of someone hearing their troubles.s
Accordingly, formal rules of evidence are often shunned. Instead, the arbitration is seen as a forum in which the parties themselves-as opposed to their lawyers-can effectively participate in the proceeding, articulating their grievances and frustrations in the presence of the other side, in an effort to lubricate channels of communication and improve the broader management-worker relationship and workplace situation and atmosphere.
Following are some of the reasons why the rules of evidence are shunned in labor arbitrations. To summarize briefly, the relationships between parties to a labor arbitration generally lead them to show formal rules of evidence because: 1. The parties themselves are often unfamiliar with the formal rules of evidence, and therefore could not participate effectively if the rules were incorporated.
2. Even if they were familiar with the rules, the parties are less concerned with limiting what the other side may say or offer as they are with ensuring that they themselves can say everything that is on their minds and to offer any evidence they feel to be important.
3. Lawyers-the inevitable consequence of incorporating formal rules of evidence-are more likely to depersonalize the proceedings and make them adversarial to the actual detriment of both parties.
4. Since the arbitrator chosen by the partiesand perhaps the most qualified, to arbitrate a given dispute-because of, for example, his or her knowledge of the parties, their relationship, the industry, and/or the specific workplace, may not know the rules of evidence.
Time and Cost-Efficiency
Because the smooth running of the parties' business often depends on quick and inexpensive resolutions to the conflicts that can often arise, parties to an arbitration generally demand time and costefficiency. To this end, arbitration not only avoids backlogged dockets, but it also discourages extensive discovery, the hiring of attorneys, and the enlisting of the private services of judges.
As a result, injecting complex formal evidentiary rules would serve to undermine the goal of time and cost-efficiency by requiring parties to seek representatives and arbitrators with "formal education[s] in legal genetics... [as would be necessary] to assess with any reasonable degree of confidence the... `technical trumperies'... of the rules of evidence."6 With lawyers comes scheduling difficulties, the need to educate the lawyers on the details of the situation, and an affinity for-or at least an expectancy of-pre-trial and post-trial briefs. With rules of evidence comes a need to spend time-and billable time at that-considering what evidence will likely be admissible and how to get in and keep out as much of your and the opposing side's evidence respectively as possible. Thus, the injection of the formal rules of evidence would only sully the simplicity and purity essential to keeping labor arbitrations efficacious.
Privacy and Confidentiality
Also, unlike a judicial proceeding, an arbitration is private. Accordingly, parties to an arbitration are neither forcibly exposed to public galleries nor subject to laws of public disclosure regarding transcripts or dispositions of the proceedings. The arbitration setting allows parties to speak openly with the comfort of knowing that what is said in the arbitration room will stay in the arbitration room. The goals and anticipated contexts of many formal rules of evidence in this regard are therefore simply not relevant to the arbitration context.
Safeguarding the Integrity of the Proceeding
A significant characteristic of arbitration is that the parties to an arbitration do not present their cases to a jury. It is often argued, if not widely accepted, that generally rules of evidence "had their origin in the felt necessity of courts to prevent undisciplined layman juries from being gulled in their deliberations by prejudicial or unreliable testimony or exhibits."7 However, "[a]rbitrators, by training, are presumably better qualified to evaluate the weight of [for example] hearsay evidence and put it somewhere between `strongly persuasive' and vicious gossip."8
As a result, a principal goal of evidentiary rules is often inapplicable to arbitrations; that is, unlike the layman juror, the typical arbitrator presumably does not need protection from being tricked or prejudiced into using improper bases in finding the facts. Therefore, again many of the benefits of the formal rules in this context is lost in the labor arbitration context.9
Rules of Evidence: The Practical Reality
Having attempted to show why formal rules of evidence generally are not appropriate in the arbitration context, it is now helpful to consider a second, more practical point on the issue of evidentiary rules, which concerns the inherent inef ficacy of the formal rules themselves; that is, (i) the formal rules are infinitely numerous, complicated, and confusing even for legal scholars, and (ii) even once understood, the rules often depend to such a great extent upon the discretion of the particular judge applying them that they seldom do any more for the fact-finder than provide a label for the discretionary decision to be made. As a result, the history of the rules of evidence has been a widely and often criticized one, riddled with conflicting judicial holdings.
One must therefore seek to uncover what benefits, if any, might flow from allowing the unstipMated introduction into labor arbitrations of the formal rules of evidence.
An Unsavory Abyss
The intricacies and volume of most of the formal evidentiary rules provide endless challenges and confusion even to those who study and practice law for a living. As a result, the rules of evidence are among the most criticized bodies of law within the discipline:
Modern evidence professors harbor occasional defensiveness about their chosen discipline, because many of the greatest scholars of the past two centuries have favored the repudiation of much of the developed law in this field.... [In fact,] there are few areas where the scholarly challenges to established principles have been so extreme and the future of foundational doctrines so uncertain as in the law of evidence.10
In fact, pondering the deficiencies and, at times, absurdities of the evidentiary rules upon which ours are mostly based, "[a] leading English evidence scholar once suggested that the law in that country may have worked as well as it did because it was largely ignored."11
Evidentiary rules concerning privileged communications and hearsay are good examples of common evidentiary rules-particularly relevant to the arbitration context-so riddled with complexities, copiousness, exceptions, and ambiguities that courts and lawyers have failed to grasp coherent understandings of them. The result, of course, has been nearly routine costly and distracting evidentiary disputes regarding these rules, which have resulted in a checkered jurisprudence on these issues at best.
Consider, for example, the attorney-client privilege.12 This privilege has become extremely "complex and, therefore, litigated... [and, as a result,] has created time-consuming and costly responsibilities for both litigants and judges."13 The confusion surrounding the privilege is widespread. In theory, it simply is meant to ensure the confidentiality of professional communications between a client and his or her attorney, in order to encourage candidness. However, the privilege's plethora of exceptions and ambiguities have rendered it somewhat counterproductive.
[O]pportunities for confusion and misunderstanding [amongst]...judges and lawyers [concerning the privilege]...have grown.... This... has led to (1) confusion about how the privilege is applied to the attorney's communication with the client; (2) unnecessary restrictions on the source of information communicated by the client to the attorney; (3) misperceptions about pre-existing documents communicated by the client to the attorney; and (4) erroneous decisions...."
The Hearsay rule is another good example of an evidentiary rule widely criticized for being too voluminous, exception-ridden, and ambiguous to offer coherent guidance. The Hearsay rule is especially relevant to the labor arbitration context as both the absence of authority to subpoena witnesses or compel testimony and the discouragement of discovery often render inadmissible as Hearsay the only evidence parties have or might reasonably be able to acquire. The rule, which itself seems simple at first glance, provides that, "Hearsay is 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... [and] is not admissible except as provided by these rules...."15 The rules, however, go on to provide a long list-spanning five rules and nearly 40 subsections-of often complicated exceptions to the hearsay rule. Moreover, in applying the rule itself, it quickly becomes clear that its initial definition is by no means clear or precise. In fact, "[i]n some law schools, students spend over half their time in evidence classes learning the intricacies of the hearsay rule."16
On a more practical note, like the attorney-client privilege, the complexity of the hearsay rule has led to numerous and high costs to both the parties and the judicial system:
The cost of maintaining the [hearsay] rule is not just a function of its [questionable] contribution to justice. It also includes the time spent on litigating the rule. And of course this is not just a cost...borne by the parties, for in our system virtually all the cost of the courtsalaries, administrative costs, and capital costs-are borne by the public.... The rule imposes other costs as well. Enormous time is spent teaching and writing about the hearsay rule, which are both costly enterprises.... Enormous academic resources are expended on ... [teaching the rule's] intricacies.17
Creating a Ship Without a Rudder
A great deal of the hostility legal scholars feel towards the formal rules of evidence also stems from the often unworkable theory that underlies the rules; that is they often materially depend upon the discretion of the particular judges applying them-so much so that many of the rules' goals are no better achieved with than without the rules themselves:
[o]n questions of admissibility, the Federal Rules of Evidence-considered individually and as jointly applied-provide substantial discretion to trial judges. Their generality alone gives courts some discretion by creating at their fringes a penumbra of debatable meaning. Further, the harmless error rule enhances trial court discretion by directing the appellate courts to give the trial court a limited right to be wrong without incurring reversal.18
The result of the reliance on discretion is that even in the courtrooms of equally learned and experienced judges, the scales those judges use to weigh, for example, the probative value or prejudicial effect of evidence are far from uniform, objective, or precise. Instead, the calculations of these basic factors of admissibility are essentially made based on mere subjective and imprecise "gut reactions."19 In many cases, therefore, the formal rules are of little or no substantive value, but rather simply grant the trial courts the "discretion either to admit or exclude evidence."20
Federal Rules of Evidence 403 and 406 are good examples of common evidentiary rules, particularly relevant to the arbitration context, so plagued by reliance on the discretion of the individual trial courts that they have succeeded only in burdening the judicial system with the high costs of ambiguity, uncertainty, and inconsistency.21
Rules 403 and 406, like many other evidentiary rules relevant to the labor arbitration context, are designed to help "to ensure a rational fact-finding process, to avoid improper collateral effects that outweigh probative value, to prevent undue delay or consumption of time, and occasionally to further policies extrinsic to the adjudicatory process that override the objective of ascertaining truth."22
Federal Rule of Evidence 403
By its terms, Rule 403 excludes evidence whose "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."23 As a result, a court's time need not be wasted by unnecessary evidence, nor a juror's mind prejudiced by evidence that will serve far more to hinder objectivity than clarify facts.24
Most consider Rule 403, a rule to which nearly all other evidentiary rules concerning admissibility are subordinate, to be, along with Rule 401 (relevancy), the most important rule of evidence.25 Furthermore, Rule 403 is in many respects representative of most formal rules of evidence and, especially, of those rules claimed to be relevant to arbitration: it is exclusionary; it is geared towards eliminating undue delay and wastefulness; it seeks to keep out evidence most likely to exploit the "gullibility" of laymen juries; and it is subject to the general deficiencies stemming from reliance on discretion in determining probative value and prejudicial effect that pervasively riddle the whole of the body of the formal rules of evidence.
Like many formal rules of evidence, however, Rule 403's history is checkered with amorphous applications and inconsistent holdings. Consider, for example, the Rule's common usage for exclusion of evidence whose probative value is substantially outweighed by the danger of unfair prejudice-a calculus that underlies the rationales and/or admissibility determinations of most of the formal rules of evidence.
Although generally guided by a long tradition of relevancy jurisprudence, the Rule's first stepdetermining the probative value of evidenceoften presents situations in which reasonable minds can and do markedly differ as to the conclusions.26
Furthermore, in applying the second step of the rule-determining the prejudicial effect of the evidence-not only are judicial results inconsistent, but the guidelines to be used in reaching a determination are themselves ambiguous. "At best, this nebulous inquiry into the minds of a handful of lay people involves a great deal of guesswork."27 As a result, courts have "failed to develop a coherent definition of unfair prejudice," and instead simply adjudicate "claims of unfair prejudice on an ad hoc basis."28
The inconsistency, confusion and, at times, counter-intuitiveness that pervades courts' Rule 403 holdings is richly evident in the relevant caselaw. For example, Rule 403 has helped lead to the adoption of rape shield laws29 which generally render evidence of an alleged rape victim's past sexual conduct inadmissible both to protect the victim from embarrassment and to avoid unfair prejudice.30 Yet, using the Rule to balance the same considerations in cases of sexual harassment, the United States Supreme Court has reached an opposite conclusion, finding that, despite the element of embarrassment and the prejudicial effects such evidence might have on a jury, a complainant's "sexually provocative speech or dress" is "obviously relevant" to and probative of whether the defendant's advances were, in fact, "unwelcome."31 Courts have encountered similar consistency struggles in making Rule 403 determinations as to whether to admit evidence concerning a criminal defendant's practice of witchcraft or Satanism or involvement in gangs, or concerning evidence consisting of gruesome photographs-for example, photographs of victims, crime scenes, autopsies, etc.32 In applying Rule 403 in these cases, courts, required to make the exact same discretionary decisions, have produced exactly opposite conclusions.
As a result, the procedural effect of Rule 403 has been that courts have become charged with the impossible task of psycho-analyzing the jurors in an effort to predict which evidence will unfairly and unjustifiably incite jurors' prejudices;33 an effort which invariably leads to the ad hoc litmus test of "I know it when I see it." The substantive effect of the rule has been that it has created ambiguity and uncertainty amongst the courts and has "substantially increase[d] the risk of erroneous decision-making,"34 which, in turn, has injured litigants in the short term, and the entire judicial system in the long term.
Federal Rule of Evidence 406
To fully understand Rule 406, it is first necessary to understand Rule 404. Rule 404 provides that: "Evidence of a person's character or trait of character is inadmissible for the purposes of proving action in conformity therewith on a particular occasion."35 Rule 404 would thus bar the use of evidence to show, for example, that because an employee had, in the past, either misused a piece of machinery or arrived at work late, he/she likely acted similarly on the occasion at issue. Rule 406, however, carves out an exception to Rule 404. "Rule 406, the habit rule, in effect says that Rule 404's calculus may be unsound when a personality trait can be classified as a habit."'6
In its notes to the Federal Rules of Evidence, the Advisory Committee decided to leave the term "habit" undefined, and, instead, essentially offered "two distinct concepts of habit," both of which may be relied upon by a court.37 Both concepts involve a determination of whether the actor generally engages in the "habit" at issue as a "routine response to a specific situation."38 The second concept, however, involves an additional determination as to whether the actor generally does so on a "nonvolitional or semiautomatic" basis.39
Under both concepts, however, the Rule grants courts nearly unbridled discretion in making Rule 406 determinations. The Rule grants this discretion in two fundamental ways. First, neither the Rule nor subsequent jurisprudence thereto define the requisite frequency with which an actor must have engaged in the "habit" at issue, the degree of similarity that must exist between each of the actor's repeated responses, the degree of similarity that must exist between the various situations to which the actor responded, or the degree of detail with which those situations must be described in the first place.40 Second, the ability of the court either to require or ignore the additional "nonvolitional" requirement itself affords the court the flexibility of admitting evidence under Rule 406 at the court's discretion, based, presumably, on the value and fairness the court believes to be inherent to that evidence 41
Courts have recognized and embraced the discretion Rule 406 affords them. In fact, the 11 th Circuit has expressly stated that it is unwilling to "develop a precise threshold of proof necessary to transform one's general disposition into a `habit."'42 In essence, as with most of the rules, the "drafters...painted with a broad brush,"43 thereby providing courts with the discretion to admit or exclude evidence based on their own, individual subjective evaluations of value and fairness.
Applying the Lessons of the Federal Rules of Evidence to Labor Arbitrations
In considering whether formal rules of evidence should have a place in labor arbitrations, the information gleaned from a study of the rules can be instructive. First, the rules are not easily understood by those with formal legal educations who study them for a living. To that end, they may very well be incomprehensible to anyone trying to learn them on his or her own or through a course offered at night school. Second, once understood, most of the rules nevertheless often fail to provide concrete guidance, but rather rely heavily upon the discretion of those applying them. Discretion, however, is subjective, ad hoc, and, often, in the end, a "gut reaction."44 The result, therefore, is that even when applied to proceedings for which the rules were drafted, whether because of the rules' inherent complexity and/or reliance on discretion, most rules produce inconsistency and confusion-at a high cost to both the parties and the judicial system. Accordingly, in view of the increased costs that accompany the use of formal rules of evidence in the context of labor arbitrations, and the questionable efficacy of many of the rules even in their intended environment, one is led to the inevitable conclusion that the formal rules have no place in labor arbitrations unless their introduction is so stipulated by the parties.45
Arguments Made for Incorporating Rules of Evidence in Labor Arbitrations
Many still argue that the formal rules can and should be relied upon in labor arbitrations. Below is a look at some of the reasons offered in support of this view, as well as the respective counterarguments.
The Current Trend Towards Legal Formalization
Some argue that formal rules of evidence are now appropriate in arbitrations because, simply, the nature of arbitrations has changed. Some of the once sacrosanct informality of arbitrations has been replaced, in recent years, by more judicial formality. "Over a period of time, and by increments, the valid arbitration objectives of speed and informality [have] slipped away from view."46 Increasingly, parties to labor arbitrations choose to fill the positions of both party advocate and arbitrator with lawyers. The result is a natural interjection of formal rules and laws into the once immune arbitration process: Today, except for the absence of a high bench, oak paneled walls, and an enrobed judge, a casual short-term observer may fail to distinguish between a one-day labor arbitration contesting a one-day suspension from work and the trial of an anti-trust case in federal district court.47
In pointing out this trend, advocates argue that the formalization of the arbitration process has stemmed, in large part, from the changing goals and attitudes, in some industries, of the workplace laborer. "The job itself is now seen as an entitlement or property right, and individual grievants have demanded that unions act, not as traditional bargaining unit representatives solving problems with management, but as their legal advocates."48 The result is that, as the nature of both employment and the relationships between workers and their companies have become less personal, so too has the procedure by which the parties have chosen to arbitrate their disputes.
A by-product of this formalization has been the increased reliance on, and presence of, formal rules of evidence. Even the most simple of today's arbitrations can be saturated with reliance on external rules of evidence. This, in turn, has resulted in a strong encouragement of the learning of common evidentiary rules and concepts by participants in arbitration proceedings.
The result of this trend is that many of the traditional goals of arbitration have been severely undermined. In addition, where relationships between parties have changed, the parties to an arbitration are free to stipulate to the incorporation of rules of evidence into their arbitration procedures-either by an ad boc stipulation or the inclusion of such a term in the collective bargaining agreement itself. Although this trend may be gaining momentum, it is still limited in scope. Accordingly, lest the exception swallow the rule, the deeply entrenched, still quite viable tenets of labor arbitration ought not be radically upset. Instead, parties seeking more formality should simply agree to such on a case-by-case or collective bargaining agreement basis.
The Role and Authority of the Arbitrator
An arbitrator continues to have certain uniformly accepted roles and obligations. He or she must find facts relevant to the dispute, interpret the collective bargaining agreement between the parties and, ultimately, hand down a decision in the dispute. To this end, certain scholars have claimed that the Code of Professional Responsibility for Arbitrators of Labor Management Disputes justifies reliance on the formal rules of evidence. According to the code, an arbitrator must "provide a fair and adequate hearing...."49 Accordingly, in order properly to judge "the relevancy and materiality of the evidence offered [in the arbitration],"50 some argue that an arbitrator may, if not should, apply well-settled and legislatively entrenched notions of evidence that are designed and proven to "steady and sober his judgment."51
Traditionally, however, the arbitrator's role and authority has been limited to performing his or her general duties with the aid of those tools of which the parties have mutually approved: "Our union expects an arbitrator to be guided and governed by the contract... [and] to be expert in getting at the facts.... Arbitration is not a court, legal principles are not a part of the bargaining relationship...."52 The traditional view has thus held that, absent consent by the parties, either by stipulation or through an interpretation of the governing collective bargaining agreement, it is simply beyond the scope of the arbitrator's role and authority to rely on or include formal rules of evidence in his or her determination of facts or issues in dispute. In fact, this view has been affirmed by the U.S. Supreme Court, which explained that an arbitrator's "award is legitimate only so long as it draws its essence from the collective bargaining agreement."53
Although an arbitrator certainly should seek "to ensure a [fair and] rational fact-finding process and avoid improper collateral effects that outweigh probative value,"54 it is simply not within his authority to use tools outside those afforded or contemplated by the collective bargaining agreement. In addition, as discussed above it is not clear that the rules are either efficacious or necessary to achieve fairness in a proceeding.
Time and Cost-Efficiency and Procedural Responsibility
Some argue that the imposition of some degree of procedural order and reasonableness into the arbitration proceeding-by incorporating formal rules of evidence-has several practical benefits that an arbitrator has a duty to seek to provide:
[T]he arbitrator's role is [not]...a passive one. The arbitrator has the responsibility to keep control of the proceedings, to confine the hearing to relevant materials, and to protect the parties from going on ad museum in repetitive fashion on facts that have been wellestablished. He should maintain an orderly and dignified procedure, patiently and kindly curbing emotional outbursts and protecting witnesses from being unduly badgered.55
However, while this proposition is no doubt sound, it seems dubious that formal rules of evidence would serve to further adhering to its goal. Again, it is unclear (i) that the complicated formal rules save time and costs in judicial forums, much less that they would in the context of labor arbitrations, and (ii) that an arbitrator could not equally effectively achieve these goals without the use of formal evidentiary rules. Therefore, when weighed against the high costs to the arbitration process that accompanies the introduction of formal evidentiary rules into labor arbitrations, the perhaps de minimis benefits that might and might notbe derived seem hardly to justify the proposal.
Still another argument offered for incorporating rules of evidence is that, whether wittingly or not, the reality nevertheless is that an arbitrator must, invariably, to some degree incorporate common sense principles that underlie the rules of evidence in assessing the value and reliability of the evidence and, ultimately, in determining an award. "Even in models of dispute resolution where the law of evidence is formally rejected, its underlying principles continue to play an important role in the process of proof and persuasion."56 Thus, the argument goes, the incorporation of evidentiary principles is inescapable and, therefore, to refuse to acknowledge them would merely be a superficial denial:
Like the practical men... who believe themselves to be quite exempt from any intellectual influences' but are nonetheless "usually slaves of some defunct economist," arbitrators, whether or not they be legally educated are unwitting...heirs to a modest number of earlier expressions of adjudicative common sense... smothered by judicial precedents...which can only...be regarded as systematic applications of dogmatic rules of evidence.57
However, the assertion that because certain common-sense notions of logic and fairness might be rooted in an arbitrator's thought process, he or she ought necessarily to learn and incorporate into arbitrations the formal evidentiary rules which stem from those notions, relies on a tempting but illusory chain of logic. Using helpful evidentiary concepts need not require the actual transplanting of the formal rules themselves-and the "obstructive and irrational technicalities"58 that come along with them-into arbitrations.
To the contrary, unlike the simple use of certain principles that underlie the formal rules, "any attempt to apply strictly the jury-trial rules of evidence to an administrative tribunal acting without a jury is...predestined to probable futility and failure."59 Furthermore, it is not clear that an arbitrator in one industry, in one geographic region, would necessarily share the same commonsense notions-and thus agree upon the same formal rules reflecting those notions -as a different arbitrator in a different industry in a different region of the country.60
The argument actually seems to cut against the introduction of evidentiary rules. If the principles underlying many of the formal rules are relied upon by the arbitrator in any event, then all involved should not be forced to go through the pains of learning the complicated names and restrictions that the formal rules attach to those principles-a process which, ultimately, will simply lead to the taking over of the process by lawyers. On the other hand, if some of the principles underlying the rules are not relied upon by a specific arbitrator, then he or she should not be forced to abandon his or her own sensibilities for which the parties chose him or her to serve as arbitrator in the first place, and give weight to principles advocated by some distant legislature, far removed from the situation from which the arbitrated dispute arose and about which the arbitrator is presumed to be expert.
The fact that formal rules of evidence exist in our nation's formal judicial system does not necessarily imply that those rules should be applied in labor arbitrations. In short, the goals and nature of labor arbitrations render formal rules of evidence undesirable, if not unworkable, in the labor arbitration context. In addition, it is unclear to what extent the relevant evidentiary rules themselves are inherently efficacious. Lastly, incorporation of formal rules, without stipulation by the parties, is simply beyond the scope of the arbitrator's role and authority.
While relying upon sound principles that might coincidentally underlie formal rules can no doubt be prudent at times, allowing the formal rules themselves into the arbitration would create an undesirable air of formality and legality and would lead to a dependence by parties upon lawyers to arbitrate their disputes, to the likely detriment of the parties and the efficacy and integrity of the arbitration process itself. Ultimately, whatever de minimis benefit allowing the introduction of formal evidentiary rules into labor arbitrations might afford, barring stipulation by the parties to permit the inclusion of such rules, that benefit is vastly outweighed by the undermining effect such formal rules would have regarding the goals and nature of labor arbitration. Accordingly, the unique qualities of labor arbitration should be respected and accommodated and the independence of its system should be preserved.
* Special thanks to Professor Robert A. Gorman, for his guidance and insight. Thanks also to Ms. Siobhan M. Crann, Mr. Lucas A. Bathurst, Hd.E, Mr. Curly G. Neale, and Lt. Christopher A. Shine for their collective advice and support.
1 Report of the West Coast Tripartite Committee, Problems of Proof in Arbitration: Proceeding of the Nineteenth Annual Meeting of the National Academy of Arbitrators 149-50 (Dallas L. Jones ed., 1966).
2 Resolving Commercial Financial Disputes A Practical Guide, www.adr.org, last visited 10-2099.
3 Edward Brunet, "Arbitration and Constitutional Rights," 71 N.C. L. Rev. 81, 85 (1992).
4 Jeremy Bentham, Treatise on Judicial Evidence 7 (M. Dumont Ed., London 1825).
5 Marvin F. Hill, Jr. & Anthony V. Sinicropi, Evidence in Arbitration 3-4 (2d ed. 1987).
6 Edgar A. Jones, Jr., "Evidentiary Concepts In Labor Arbitration: Some Modern Variations On Some Ancient Legal Themes," 13 UCLA L. Rev. 1241, 1251 (citation omitted).
7 Report of the West Coast Tripartite Committee Problems of Proof, supra note 1, at
8 Marvin F. Hill, Jr. & Tammy M. Westhoff, "I'll Take It For What It's Worth," 1998]. Disp. Resol. 1, 12 (1988).
9 Although the rules might nevertheless serve as helpful reminders to arbitrators of important evidentiary principles, (i) this service is not of the same monument as that with which the judicial system has justified the Rules' weighty power to exclude otherwise relevant evidence, and (ii) this small, and perhaps unnecessary, benefit is still vastly overshadowed by the factors weighing against allowing formal rules to be introduced into labor arbitrations.
10 Laird C. Kirkpatrick, "Scholarly and Institutional Challenges to the Law of Evidence: From Betham to the ADR Movement," 25 Loy. L.A. L. Rev. 837, 837-38 (1992).
" 21 Fed. Prac. & Proc. Evid. 5007 (Wright & Miller Treatise 1999 Supplement) (citing Cross, "Some Proposals for Reform in the Law of Evidence," 24 Mod. L. Rev. 32 (1961)).
'z One should note that evidentiary rules (whether statutory or from common law) concerning privileged communications between attorneys and clients, priests and penitents, and
doctors and patients, etc., are likely moot in the labor arbitration context. Because arbitrators cannot compel testimony or even subpoena witnesses the respective codes of professional conduct regarding confidentiality could prevail.
11 Paul Rice, "Attorney-Client Privilege: Continuing Confusion About Attorney Communications, Drafts, Pre-Existing Documents, and the Source of the Facts Communicated," 48 Am. U L. Rev. 967, 968 (1999).
"Id. at 968-69.
'S Fed. R. Evid. 801(c) & 802.
'6 Ronald J. Allen, "The Evolution of the Hearsay Rule to a Rule of Admission, Commentary" A Response to Professor Friedman, 76 Minn. L. Rev. 797, 800 (1992).
'e Thomas Mengler, "The Theory of Discretion In The Federal Rules Of Evidence," 74 Iowa L. Rev. 413, 413 (1989) ("The codes give an abundant discretionary power to trial courts.").
'9 Id. at 445. ' Id. at 439.
=` Another good example is Rule 807, the residual hearsay exception. This exception grants courts nearly unfettered discretion by
allowing courts to admit otherwise inadmissible hearsay evidence where, for example, that evidence has "circumstantial guarantees of trustworthiness... [and] the court determines that...the general purpose of these rules and interests will best be served by admission of the statement into evidence." Fed. R. Evid. 807.
zz Supra, note 10, at 847.
23 Fed. R. Evid. 403. The rule states, in its entirety, "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
za George L. Blum, "Annotation, Admissibility and Prejudicial Effect of Evidence in Criminal Prosecution, of Defendant's Involvement with Witchcraft, Satanism, or the Like," 18 A.L.R. 5th 804 at 11 (1995).
22 See Mengler, supra, note 18, at 440.
26 Edward J. Imwinkelried, "The Meaning of Probative Value and Prejudice in Federal Rule of Evidence 403: Can Rule 403 be Used to Resurrect the Common Law of Evidence," 41 Vand. L. Rev. 879, 884 (1988).
27 Supra, note 18, at 414.
28 Victor J. Gold, "Federal Rule of Evidence 403: Observations on the Nature of Unfairly Prejudicial Evidence," 48 Wash L. Rev. 497, 498 (1983).
ZZ Rape shield laws are codified in Federal Rule of Evidence 412. See Fed. R. Evid. 412: Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (declaring inadmissible specific evidence regarding charges of sexual misconduct, including evidence of past sexual behavior or predisposition).
30 See Agard v. Portuondo, 117 F.3d 696, 703 (2d Cir. 1997) (explaining that "[r)ape sheild laws serve the broad purpose of protecting the victims of rape from harassment and embarrassment in court, and by doing so seek to lessen women's historical unwillingness to report these crimes. Yet they also serve a second purpose: they reinforce the trial judge's traditional power to keep inflammatory and distracting evidence from the jury"). See also Fed R. Evid. 412 advisory committee's note (often discussing Rule 403 as the default rule in situations wherein Rule 412 does not apply and emphasizing the congruent purposes and elements of the two rules).
11 Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986) (holding that a complainant's speech and dress are admissible in a sexual harassment case). See also Reed v. Shepard, 939 F.2d. 484, 485-88 (7th Cir. 1991) (finding that the plaintiffs use of profane language, provocative dress and giving of humorous sexuallyrelated gifts to co-workers contributed to an environment which suggested that she might welcome such conduct).
32 See, for example, People v. Zammora, 152 P.2d 180 (Ill. Dist. Ct. App. 1944); State v. Waterhouse, 513 A.2d 862, 864 (Md. 1986); Burdine v. State, 719 S.W.2d 309, 316 (Tex. Crim. App. 1986); compare with People v. Perez, 114 Cal. App. 3d 470 (Cal. Ct. App. 1981);
State v. Kimbrell, 351 S.E.2d 801, 804 (N.C. Ct. App. 1987), rev'd on other grounds, 360 S.E.2d 691 N.C. 1987); State v. Dunn, 850 P.2d 1201, 1222 (Utah 1993).
" See Imwinkelried, supra, note 26, at 89495 (explaining that to apply Rule 403, "[d]rawing on his knowledge of juror psychology, the judge tries to forecast the probable response of the typical juror to the item of evidence") (citation omitted).
34 D. Craig Lewis, "Proof and Prejudice: A Constitutional Challenge to the Treatment of Prejudicial evidence in Federal Criminal Cases," 64 Wash. L. Rev. 289, 289 (1989) (asserting that rule 403 decision-making is often erroneous and, in addition, that rule 403 unconstitutionally places the risk of decisionmaking error on the defendant).
Fed. R. Evid. 404.
36 Supra, note 18, at 416. Rule 406 states
that "Evidence of the habit of a person...is relevant to prove that the conduct of the person...on a particular occasion was in conformity with the habit...." Fed. R. Evid. 406.
11 Id. at 416-18. 33 Id. at 417.
' Id. at 440 (citations omitted).
" Id. at 423-24. Because Courts determine value and fairness based on weighing probative value against prejudicial effect, the Federal Rules thus seemingly allow courts to incorporate some degree of the Rule 403 analysis into Rule 406. Rather than being viewed as superfluous, however, this aspect of the rule is more prudently seen as another way Congress sought to "[p]rovide options within the parameters of [individual] rules [simply as] another means to give maneuverability to a court." Id. at 447. Naturally, this would be consistent with the central role discretion plays in the Rules.
az Loughan v. Firestone Tire d*' Rubber Co., 749 F.2d 1519, 1524 (11th Cir. 1985).
Supra, note 18, at 465. " Id. at 445.
45 I have endeavored to show the inefficacy of most of the rules by virtue of their complexity and/or tremendous reliance on discretion. It should be noted, that while there certainly might exist a limited number of evidentiary rules that may be precise and directive, they are limited in both number and significance.
45 Reginald Alleyne, "Delawyerizing Labor Arbitration," 50 Ohio St. L. 3. 93, 94 (1989).
" Id. at 95 (citation omitted).
48 Hill, Jr, & Sinicropi, supra, note 5, at 411.
19 Art. V, A(1) at 19 (1974) (adopted by the National Academy of Arbitrators, the American Arbitration Association, and the Federal Mediation and Conciliation Service); see also, Edward Brunet, supra, note 3, at 117 ("First and foremost, the application of fundamentally fair procedure is probably a goal of the parties who have chosen to arbitrate. It would be a strange set of disputants who would choose not to apply fair procedure.'.
'o American Arbitration Rules, 28, as amended and in effect, March 1, 1986.
" I Wigmore, Evidence, 46 at pp. 30-31 (1941) (quoting Sir Henry Maine).
52 Supra, note 6, at 1248. See also United Steelworkers of America v. Enterprise Wbeel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358 (1960) (holding that an arbitrator's "award is legitimate only so long as it draws its essence from the collective bargaining agreement").
S' Enterprise Wbeel.
S' Supra, note 10, at 847.
55 Report of the Chicago Area Tripartite Committee, "Problems of Proof in Arbitration: Proceedings of the Nineteenth Annual Meeting of the National Academy of Arbitrtors," 88 Dallas L. Jones ed., (1966); see also, Hill, Jr. & Sinicropi, supra note 5, at 410 (arguing that even non-lawyers representing parties commonly make objections aimed at limiting evidence that can be offered, thus reflecting the parties' intentions not to turn the arbitration into "an unlimited search for `truth'...[which] `explore[s) all that can be asserted on either side."') (citations omitted).
Sfi Supra, note 10, at 838; see also Hill, Jr. & Sinicropi, supra note 7, at S ("Whatever view one accepts, it is clear that numerous problems regarding the introduction of evidence constantly challenge the arbitrator. As a result, the arbitrator inevitably must make evidentiary rulings and determinations, if not at the hearing, then in his subsequent opinion and award.")
'' Report of the West Coast Tripartite Committee, supra, note 1, at 150 (citation omitted).
`* Id. at 152. 59 Id.
60 For example, an arbitrator who adjudicates matters in an industry made up mostly of small, family-oriented farms, plants, etc. in Nebraska might have a considerably more trustful view of hearsay evidence than an arbitrator dealing with large, impersonal factories in a large metropolitan city.
BY Michael S. Winograd
The author currently serves as a senior editor of the University of Pennsylvania Law Review and works part-time with the litigation department of the law firm of Sullivan & Cromwell. He will join Sullivan & Cromwell full time as a litigation associate in September 2000.…