Rules of Evidence in Labor Arbitration
Winograd, Michael S., Dispute Resolution Journal
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. …