Arbitration Process: Case Presentation

Transcription

1 Arbitration Process: Case Presentation Case Presentation at an Arbitration Hearing Arbitration hearings typically follow a customary order of proceedings: 1. Opening statement by the initiating party. 2. Opening statement by the responding party. (The responding party may defer until its case in chief) 3. Presentation of witnesses and direct examination by the initiating party. 4. Cross-examination by the responding party. 5. Presentation of witnesses and direct examination by the responding party. 6. Cross-examination by the initiating party. 7. Summation and closing argument by the initiating party. 8. Summation and closing argument by the responding party. The customary order of a hearing may vary at the request of a party, by the desire of the arbitrator, or by an agreement between the parties in the contract. Arbitration hearings are informal in comparison to court proceedings and may be flexible to suit the needs of the case and the parties. Page 1 of 1

2 Arbitration Process: Elements The Elements of Case Preparation Opening Statements: The opening statement is a crucial element of presentation that will help the arbitrator understand your case and the relevance of the oral and written evidence that is presented. You may prepare the statement in writing and present a copy to the arbitrator and the other party. An opening statement should be concise and be delivered clearly and at a reasonable pace so that the arbitrator con follow. In the statement, you should identify the issues, indicate what is to be proven, and specify the relief or remedy sought. You may also stipulate any facts of the case in the opening statement. Presenting Documents: (4 copies, number the pages) Documentary evidence should be presented to the arbitrator with an additional copy given to the other party. You may present documents or exhibits all at one time when you begin to present your evidence after the opening statements, or you may introduce the evidence through witnesses by relation testimony to the particular exhibit. The arbitrator must be able to understand how each piece of evidence is relevant to the case. Generally, the collective bargaining agreement, or those sections that have been on the grievance should be submitted. Other evidence may include personnel records, medical reports, minutes of meetings, or correspondence that is relevant. Page 2 of 2

3 Arbitration Process: Guide Guide to Arbitration Case Presentation I. Opening Statements A. It represents an intention of proof and not testimony (We intend to show...). It is a road map to let the arbitrator know where you are going and how you will get there. B. Provide an overview or synopsis of your case. C. Define and state the issues to be decided. D. Explain the facts to which the arbitrator needs introduction (i.e., circumstances surrounding the grievance.) E. Include the gist of the main arguments in your case. F. Avoid inclusion of argumentative or conclusionary statements. G. Refer to relevant contract provisions. H. Indicate the remedy or relief being sought. I. Be concise. II. Examination of Witness A. Establish the witness s identity if necessary, his/her special competence. B. Establish the witness s position with the employer or union. C. Establish the witness s relationship to the case. D. Establish the witness s length of employment, if relevant. E. Bring the witness to the facts as quickly as possible. F. Ask the witness what happened, where it happened, when it happened. G. Anticipate by your direct questions some doubts that may be raised in cross-examination. H. Consider re-examining the witness after cross-examination to clarify or answer questions raised in cross-examination. Page 3 of 3

4 I. Ask the witness only about what is needed. J. Ask the witness about only those matters that the witness has seen, heard or knows. K. Do not testify for the witness. L. Do not ask all your questions as if they were private exchanges between you and your witness. Vary your line of inquire. Occasionally, preface you questions in order to draw attention. M. Emphasize those features of your case which you feel are important. III. Framing Questions A. 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. B. Make the question brief. Both the witness and the arbitrator must remember the question in order to understand it. Lengthy questions cause confusion. C. State the question in simple words. The witness and the arbitrator should be able to understand both the question and the answer. Use words that are understandable to both the arbitrator and the witness. D. Make the question clear. Remember the arbitrator is less familiar with the facts and circumstances of the grievance than either you or the witness. E. Occasionally repeat key phrases. F. 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.? G. Avoid the use of jargon and acronyms. Example: DAS, P. R. 24 s, Dvops, CICS. IV. Cross-Examination A. It is the intent of cross-examination to discredit the witness, to discredit the testimony of the witness, to challenge or contradict facts which have Page 4 of 4

5 V. Objections Direct Examination: already been established by previous testimony, or to produce affirmative testimony to aid your case. B. Prepare for cross-examination. C. Be vigorous and, at times, persistent. D. Do not cross-examine unnecessarily. E. Do not ask a question unless you know what answer the witness will give, and are prepared to prove that a contrary answer is false. F. Do not ask the witness to repeat damaging testimony unless it can be used to impeach the witness. G. Phrase the question so the answer is limited to the information you seek. H. Observe the witness s reaction to questions. I. Disrupt memorized testimony by varying the order of questions. J. Avoid offensive or too many objectionable questions. K. Do not cross-examine with respect to accurate testimony unless it will help your case. L. Expose the bias or interest, if any, of the witness of the case. M. Use prior inconsistent statements, documents, and actions by the witness to impeach testimony that has been harmful to your case. N. If the witness has not harmed your case, do not cross-examine. A. The purpose of raising objections is to exclude information to prevent prejudice, to modify the form or manner of questioning taking place, to change momentum, or to instruct or calm the witness. In direct examination, you will want to have the facts of the case presented or supported. Introduce the witness by name, position, and relationship to the case. Although leading questions may be used in arbitration, a witness ss own testimony is more effective. Be Page 5 of 5

6 careful to keep the witness on track and ask questions that are clear and easy to understand by the witness and arbitrator. Cross-Examination: Cross-examination of a witness provides a party with the opportunity to clarify, challenge, or refute testimony given by a witness under direct examination. Crossexamination should be short and used wisely, as it is possible to harm your case in the process of examining a hostile witness. You should consider waiving your crossexamination unless you have a specific goal in mind. Never ask a question on crossexamination that you do not know the answer. Never ask the question why. Objections: Each party is entitled to object to the introduction of improper or irrelevant evidence or argument, and unethical behavior by the other party. Objections can cause the arbitrator to consider the challenged evidence before determining its weight even if overruled. Objections should be made for plausible reasons and not be over used which will only serve to hinder the hearing process. Objections are sometimes used to allow time for your witnesses to compose themselves and organize their thoughts. The Summary: The summary, or closing argument, will be made by each party to summarize the facts and the issues, and justify the remedy sought by each party. This may be the last chance to convince the arbitrator of your case and refute any argument made by the other party. Post Hearing Material: The arbitrator will set appropriate time limits for the filling or briefs or additional documents and the hearing will remain open until all documents are received. Closing a Hearing: The arbitrator will declare the hearing closed after both sides have had an equal opportunity to present their evidence and arguments. Under AAA Voluntary Labor Arbitration Rules, the arbitrator has thirty days to render an award unless the contract gives another time limit. Page 6 of 6

7 Re-opening a Hearing: Parties may agree to reopen a hearing to add data or new evidence. The arbitrator may require another hearing, or may receive the new evidence for consideration without a formal hearing. Page 7 of 7

8 Arbitration Process: Checklist Case Preparation Checklist Start with initial handling of grievance. Thoroughly investigate grievance and gather all the facts. 1. Grievant(s) 2. Applicable contract provisions allegedly have been violated. 3. Nature of the dispute 4. Remedy sought 5. Union s position through the grievance procedure. 6. Management s responses through the grievance procedure. Review and analyze entire grievance record and case background. Reconstruct the incidents precipitating the grievance. 1. Narrative summary of chronological facts leading to the grievance (e.g., dates, times, places, events, and circumstances). 2. Examination of paperwork, documents, and physical evidence (e.g., grievance forms, request for arbitration, witness statements, time cards, employee work record, sample of work, etc.). Organize grievance case file in logical manner. Consider threshold questions. 1. Appropriateness of grievance. 2. Arbitrability (timely raised). Study the Contract. a) Procedural b) Substantive 1. Grievance and arbitration provisions. 2. Express language pertaining to grievance a) Clear and unambiguous b) Patent ambiguity c) Latent ambiguity d) Silent 3. Conflicting contract language. Page 8 of 8

9 4. Any other applicable contract clauses. 5. Derived rights in contract. 6. Implied rights in contract. 7. Reserved rights. 8. Cross-reference contract provisions. Review Bargaining History 1. Who proposed language? In what context? 2. Examples or hypothetical situations used during negotiations pertaining to the contract provision in dispute. 3. What did contract language replace, if anything? 4. Was language rejected or modified? 5. Who finally drafted the language? 6. Any changes in the language between intervening bargaining sessions? 7. Contemporaneously made bargaining notes. Ascertain and Review Past Practices 1. Restrictive or permissive language (e.g., zipper clause, maintenance of prior benefits, favored nations, etc.) 2. Description of incidents. 3. Controlling factors. a) Mutual awareness b) Repetition and frequency c) Duration d) Unequivocal e) Breadth f) Consistency g) Reasonableness 4. Major or minor benefit or condition of employment. 5. Similar underlying circumstances. Review Applicable Precedents 1. Prior arbitration awards. 2. Court decisions 3. Agency rulings (e.g., PERB, NLRB) Determine employer s right to take disciplinary action. 1. Off-Duty Misconduct Harms the Employer s reputation, product, or legitimate interests. Page 9 of 9

10 Renders the employee unable/unfit to perform duties or appear at work. Leads to refusal, reluctance or inability of other employees to work with employee. Undermines the ability of the Employer to direct the work force. 2. On-duty misconduct: Reasonable and proper order or rule. Employee resorted to self-help. Analyze alleged unsatisfactory conduct or performance. 1. Existence of rule governing employee misconduct written or unwritten. 2. Reasonableness of rule 3. Rule effectively communicated to employee. a) Forewarning or foreknowledge of rule and disciplinary consequence. b) Manner of distribution to employees. c) Rule is self-evident. Determine whether employee engaged in alleged offense or omission. 1. Proper investigation. 2. Fair and objective inquiry. Weingarten rights, if applicable. 3. Substantial proof that employee did in fact commit offense. Ascertain proper application of discipline. 1. Local policy or practice. 2. Uniform, consistent and non-discriminatory application. 3. Discipline reasonably related to: a) Proven offense committed - major - minor b) Surrounding circumstances - aggravating - mitigating c) Employee s prior work record. d) Employee s length of service e) Elapsed time since last disciplinary action. Formulate your position and establish new objectives. Analyze the equity of your case and other party s case. Page 10 of 10

11 Clarify and define the issues to be arbitrated. Develop a Case Theory drawn from the facts. 1. Sound rationale based on the facts. 2. Persuasive arguments to support your findings and conclusions. Select appropriate arbitrator for your case. 1. Background of arbitrator a) Third-party neutral experience (e.g., arbitrator, fact-finder, administrative law judge, trail examiner, mediator, etc.) b) Labor relations experience c) Education background 2. Availability 3. Experience or inexperience as a labor arbitrator 4. Careful thinker 5. Clinical or legalistic approach to arbitration 6. Liberal or strict constructionist 7. Manner of conducting hearing 8. Personal viewpoints or leanings (e.g., past practice, management rights, etc.) Evaluate case in light of arbitrator selected to hear case. Gather and refine evidence and plug gaps in your case. 1. Strengthening your case by gathering additional evidence and emphasizing the strong points. 2. Filling gaps and counter-acting other party s evidence and arguments. Don t distort the facts. Don t fudge on the evidence. 3. Reviewing all prior statements of witnesses and interviewing all prospective witnesses. 4. Evaluating and selecting the appropriate witnesses for your case. 5. Being prepared to rebut other party s case with persuasive evidence and arguments. 6. Issuing any subpoenas for witnesses or documents. Prepare the witness for the arbitration hearing. 1. Conducting group or individual witness conferences. 2. Explaining to the witness: a) Your overall case rationale and main arguments. Page 11 of 11

12 b) Where testimony fits in your case. c) What testimony is expected to prove. d) What to expect at the arbitration hearing. 3. Reviewing documents to be used in the arbitration with the witnesses. 4. Instructing the witness on the do s and don ts in testifying in an arbitration emphasize proper demeanor. 5. Conducting practice sessions with the witnesses to elicit unfavorable as well as favorable testimony. a) Direct examination b) Cross-examination c) Demeanor and credibility of witness Prepare an outline or guide to use for presenting your evidence, witnesses, and exhibits. 1. Outlining your case and the other party s case. 2. Planning your strategies and tactics for presenting your case. 3. Preparing, to the extent possible, your direct and cross-examination of witnesses. 4. Deciding upon any stipulations. a) Joint exhibits b) Undisputed/uncontested facts c) Case properly before the arbitrator for determination 5. Determining whether to make oral or written closing arguments. 6. Deciding upon any procedural motions e.g., bifurcation, sequestration of witnesses, etc. Prepare and practice your opening statement. Plan your closing arguments before the arbitration hearing. 1. Organizing the primary facts and arguments which support your case theory. 2. Organizing the other party s primary arguments and your intended responses to each argument. 3. Focusing on anticipated testimony and evidence to be adduced at the hearing. 4. Concentrating on the points worth arguing and which are critical to your case. 5. Educating the arbitrator-effect and impact of an award. Prepare for the arbitration hearing. 1. Final review of your case. 2. Gathering all documents for the hearing and making appropriate copies. Watch out for best evidence rule. Page 12 of 12

13 3. Assuring availability of witnesses. 4. Arranging for a court reporter or interpreter, if necessary. 5. Considering the feasibility of a settlement. Page 13 of 13

14 Arbitration Process: Common Errors Common Errors in Arbitration - Using arbitration and arbitration costs as a harassing technique. - Over-emphasis of the grievance by the union or exaggeration of an employee s fault by management. - Reliance on a minimum of facts and a maximum of arguments. - Concealing essential facts; distorting the truth. - Holding back books, records, and other support documents. - Tying up proceedings with legal techniques. - Introducing witnesses who have not been properly instructed on demeanor and on the place of their testimony in the entire case. - Withholding full cooperation from the arbitrator. - Disregarding the ordinary rules of courtesy and decorum. - Becoming involved in arguments with the other side. The time to try to convince the other party is before arbitration, during grievance processing. At the arbitration hearing, all efforts should be concentrated on convincing the arbitrator. [Labor Arbitration Procedures and Techniques, 2021 (AAA, 1961)] Page 14 of 14

15 Arbitration Process: Losing Cases How to Alienate Arbitrators and Lose Cases From a speech Gamesmanship in Labor Arbitration by Lewis M. Gill* - Always be late for the hearing. The best plan is to stroll in at least 35 minutes late. Do not offer any explanation. - Start off with a few ill-founded technical objections. Claim that the demand for arbitration is in imperfect form, or that Step 3 in the grievance procedure was bypassed, or demand that the other side have the burden of presenting its case first. - Be persistent. Continue arguing the point even though the arbitrator indicates impatience to get on with the hearing. - Make it clear that you distrust the arbitrator. An occasional hostile or suspicious glance is effective, along with sigh or resignation whenever he questions some point you are making. - Object to the introduction of most of your opponent s evidence. Cite the law of evidence at length, preferably incorrectly. If the arbitrator overrules you, glare balefully and reserve your rights of appeal to the courts. - Interrupt your opponent frequently in mid-sentence. Complain angrily to the arbitrator if your opponent does the same to you. - When cross-examining your opponent s witness, use a sneering one. Demand yes or no answers. Imagine you are on television put on a great dramatic show. - Never admit that anything the opposition says is true. Make no concessions, even on minor points. - Cover the same ground several times. Develop irrelevant points at length. Demand recesses to send to the plant for additional witnesses to corroborate these points further. - When presenting exhibits, have them in as inconvenient form as possible. Don t prepare summaries of bulky records just dump them in raw form into the arbitrator s lap. Provide no copies for the other side. - Be sure not to state a clear theory of your case. Do not analyze the issue at the beginning or end of the hearing spend the time on a denunciation of the motives of your opponent. [*Lewis Gill is an arbitrator and a member of the National Academy of Arbitrators] Page 15 of 15

16 Arbitration Process: Practice Arbitration Practice Points 1. Objections: a. State basis b. Be prepared to have it overruled 2. Be careful of "Why?" for hostile witnesses. Explain. 3. Don't read to the Arbitrator. 4. Don't assume the Arbitrator knows anything about your operation or agency. 5. Use of a credibility witness to bolster a case: Ask does have a reputation for telling the truth? 6. No cell phones. No personal attacks. No sarcasm. 7. Introduce yourself to witnesses before beginning questions. 8. A question prefaced with "Isn't it possible..." is usually a waste. 9. Lay out the case in the opening and use the closing to show how you proved 100% of what you said that you would prove. 10. Make sure the Arbitrator knows what wins your case. Develop a theme. Page 16 of 16