Advocacy in Labor Arbitrations

October 2020 By Marshall Snider

Representing a client in a collective bargaining arbitration as opposed to litigation requires some adjustments to an advocate’s approach. This article provides an arbitrator’s-eye view of how advocates in labor arbitration can be most effective.

The arbitration of a collective bargaining dispute is similar in many ways to traditional litigation. Nevertheless, an advocate’s approach to a labor arbitration should differ in several respects from the way a case is tried in court. This is also true for arbitrators; while many of the necessary skills are the same, the arbitrator’s approach in a collective bargaining dispute can differ significantly from the methodology of a trial court judge.

Like arbitrators, advocates need to be aware of these differences and make appropriate adjustments to their advocacy styles. What follows here are the author’s observations as just one arbitrator. While it is likely that other arbitrators will agree with some or even all of these comments, it is not a given that all arbitrators have similar views. Nevertheless, this article provides some practice tips and food for thought for advocates in collective bargaining arbitrations.

Establish Credibility

Credibility with the arbitrator is an advocate’s most valuable currency. Once lost, it is difficult to regain. Credibility is lost by making frivolous or unreasonable requests, arguments, or objections. Advocates should concede valid points when there is no reasonable argument to be made in opposition. Otherwise, an advocate risks becoming “the boy who cried wolf,” with the arbitrator viewing even valid arguments with skepticism because so many frivolous arguments have preceded them.

Educate the Arbitrator Early On

Experienced advocates know the benefit of a strong opening statement that paints a picture for the arbitrator at the outset of the case. Advocates should also keep in mind that arbitrators hear cases involving many different unions and employers involved in numerous businesses and industries. So unless your arbitrator is well-versed in the business vernacular in a specific case, you should educate the arbitrator early on as to the jargon, terms of art, and acronyms used in the business at hand, as well as the relevant business operations. Arbitrators do not want to hear a first reference to the “XLD widget processor” in an opening statement or witness testimony without understanding that machine, its acronym, or the business process involved. An arbitrator should not have to interrupt a witness’s testimony to ask what this machine is or does or what XLD stands for.

This type of foundational information is best provided in opening statements, or at least by one of the earliest witnesses. In some cases, it may be helpful to prepare a glossary of terms and acronyms that the arbitrator will be hearing from witnesses and seeing in documents. Taking these steps saves time, as the arbitrator and advocates will not have to ask as many clarifying questions. It also demonstrates to the arbitrator that an advocate is well-prepared and interested in assisting the arbitrator in understanding the case.

Understand the Evidentiary Framework

Generally speaking, the rules of evidence applicable in court do not apply in labor arbitrations. An arbitrator has the discretion to allow into the record of the hearing any evidence that the arbitrator deems to be relevant or material and not cumulative,1 and arbitrators typically overrule an evidentiary objection where the evidence is relevant, material, and not cumulative or wasteful of time.

Yet advocates in labor arbitrations make evidentiary objections, often in a misguided attempt to exclude relevant evidence. Advocates should not attempt this very often, as they run the risk of losing credibility with the arbitrator by making repeated, fruitless objections.

Nevertheless, there is a limited sphere in which objections may be wise, such as with offers of evidence that are cumulative or irrelevant. One of the most frequently heard objections in a collective bargaining arbitration is an objection to hearsay evidence. Arbitrators often accept hearsay evidence over an objection, and then tell the parties that the evidence will be considered “for what it’s worth.” While this response can be frustrating to advocates, they should keep in mind that arbitrators are unlikely to make significant factual findings based solely on hearsay evidence. Thus, when a hearsay statement or written witness statement is admitted into evidence and is the only evidence on a topic, it is unlikely that the point made by the hearsay statement will be found as a fact.

Nevertheless, a well-grounded hearsay objection can signal to the arbitrator that the proffered evidence is not “worth” very much. This tactic should not be overused, but when such evidence is critical to the case it can be useful to point out to the arbitrator, in the form of an objection, the weakness of the evidence due to its hearsay nature.

Understand Witness Credibility

Appellate courts have often stated that the trier of fact is in the best position to determine the credibility of witnesses, because the trier of fact has the opportunity to view the witnesses and their demeanor and to assess their credibility. It would indeed be nice if arbitrators were human lie detectors, but determining who is providing an accurate picture of the facts in a case is not that simple. A good liar can fool the most perceptive of arbitrators. On the other hand, a person who appears nervous or fidgety or stumbling in her testimony may just be unnerved or flustered by the intimidating nature of the witness chair.

In addition, an issue of “credibility” does not necessarily involve a question of whether someone is intentionally fabricating the facts. Rather, and more likely, an inaccurate recitation of facts can be attributed to faulty observation or memory, or a fading memory. And the memory of individuals with an interest in the outcome of a case often morphs over time to be consistent with their theory of the case. This process can be a natural one and is not reflective of an intent to mislead the fact-finder.

Some studies have concluded that witness demeanor is not a reliable factor in determining witness credibility.2 Further, experienced fact-finders (including arbitrators) give more weight to objective factors in deciding whether to credit the testimony of a witness. These factors include:

• the consistency of a witness’s testimony with otherwise uncontested facts (including documentary evidence);
• the opportunity to perceive the facts testified to;
• the plausibility of the testimony (i.e., what would we expect a reasonable person in an actor’s position to do or not do, or how would we expect a reasonable person in the circumstances to react);
• bias, interest, and motive;
• prior consistent or inconsistent statements;
• evidence of a witness’s history of truthfulness and veracity, or lack thereof; and
• how the witness deals with cross-examination; for example, whether the witness is evasive or argumentative.

The lesson for advocates in a labor arbitration, when arguing for the acceptance or rejection of a witness’s testimony, is this: avoid over-emphasizing the witness’s demeanor, and do not blithely argue that the witness is lying. These approaches are unlikely to persuade an experienced arbitrator. Rather, arguments based on more objective indicia of credibility or accuracy of testimony such as those described above are apt to be more persuasive.

Finally, it is worth noting that even where witnesses provide varying versions of the facts, these differences may not be crucial to the resolution of the case before the arbitrator. Before placing too much emphasis on a credibility issue, consider whether the resolution of that issue is likely to be an important factor in the arbitrator’s deliberations.

Organize Exhibits

Well-organized and efficiently presented exhibits make arbitrators happy. A notebook containing exhibits is very welcome. Pages of lengthy, multipage exhibits should be numbered (even hand numbering is preferable to no pagination at all). If a notebook is not used, make sure the pages of multipage exhibits are stapled together; holding an exhibit together with a paper clip risks misplacing important pages of the document.

To the extent practicable, confer with opposing counsel in advance to attempt to stipulate to as many exhibits as possible. Stipulate to authenticity, if not admissibility. This not only saves time at the hearing, but also avoids unnecessary and likely unsuccessful objections.

In addition, while counsel are conferring about exhibits, confirm that the parties are not offering duplicate exhibits (i.e., each side offering the same exhibit or exhibits). If the parties do not coordinate in this way, a confusing and time-wasting process may result in sorting out that employer’s exhibit D is the same as union’s exhibit 7.

Don’t be afraid to pre-mark exhibits with numbers or letters, but if you do so, coordinate with opposing counsel. There are typically three sets of exhibits in a labor arbitration:

1. joint exhibits (e.g., the collective bargaining agreement, grievances and responses at the steps of the grievance process, and disciplinary or discharge notices);
2. employer exhibits; and
3. union exhibits.

If each of these sets of exhibits is numbered, there will be three exhibit ones, three exhibit twos, and so forth. Such duplicative numbering raises the potential for confusion, or at least a waste of time. It is better if the parties can agree in advance to use numbers for one party’s exhibits and letters for the other’s.

This is Not a Deposition

Many collective bargaining arbitrations are conducted in conference rooms or hotel meeting rooms. To experienced lawyers, these surroundings are similar to a deposition environment. Of course, the procedures at a deposition and an arbitration vary substantially. Nevertheless, when lawyers find themselves in a familiar deposition-like setting, they often revert to deposition-like behavior; primarily, they forget about or ignore the arbitrator and make arguments directly to each other. Arbitrators don’t like this. An advocate should avoid creating a situation in which an arbitrator must say, for example, “no matter how much you argue with him, I don’t think opposing counsel is going to sustain your objection. Perhaps you would like to address your remarks to me, and then you will at least have a chance.” The proper approach is to address arguments directly to the arbitrator. This may seem obvious, but it is surprising how often this advice is ignored.

Also, if a court reporter is recording the arbitration, the reporter should be considered the agent of the arbitrator, not the parties. Advocates should not be giving the reporter instructions, such as, “please read back the question.” Rather, the advocate should ask the arbitrator to instruct the court reporter.

Finally, although this should go without saying, no matter how aggressive an advocate’s deposition technique is, arbitrators do not appreciate incivility in their hearings. Arbitrators want to hear a complete and professional presentation of the evidence and arguments and dislike having to referee personal battles among advocates and witnesses. Zealousness in advocacy does not require the abandonment of civility.

Evaluate Closing Arguments versus Post-Hearing Briefs

Filing post-hearing briefs is the practice in a significant majority of cases. But a strong closing argument at the close of the evidence, while the arbitrator’s mind is immersed in the case, may be as effective. Don’t file briefs as a matter of course; consider whether arguments at the close of the hearing might be more impactful (and more economical for your client) than having the arbitrator wait 30 or more days to hear from you. If you do file briefs, don’t throw in extraneous or frivolous arguments (see the credibility discussion above). And consider that written arguments are called “briefs”; there is a reason appellate courts impose page limits.

Arbitrators differ in the extent to which they rely on prior arbitration awards in coming to their decisions. The value of citations to prior awards varies. If an award is cited for some general, well accepted proposition, such as a definition of just cause or a generic rule of contract interpretation, it is probably not necessary to provide the arbitrator with a copy of that award. However, if an advocate has a case that is particularly relevant to the facts or issues in an arbitration, it might be wise to provide a copy of that award to the arbitrator, either in hard copy or electronically.

Arbitrators also vary in the extent to which they have access to databases of authorities. If the parties are going to file post-hearing briefs, it can be useful to ask at the hearing whether the arbitrator has access to any databases on which a party will rely or would prefer to be provided with copies of any cases or other authorities cited.

Conclusion

An advocate’s approach to a collective bargaining arbitration in many respects is similar to any other form of litigation. Nevertheless, to be effective in the collective bargaining arena, advocates must take note of how arbitration differs from litigation and adjust their approach accordingly.

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