Introduction
Grievance handling takes the majority of time in the day-to-day administration of collective bargaining. An employer’s refusal to process grievances directly violates the National Labor Relations Act (NLRA), so organizations have to establish a good grievance procedure (Carrell & Heavrin, 2013). Effective grievance handling implies that most grievance cases are solved at the lowest possible level after an employee’s appeal to the shop steward or supervisor. However, certain grievances are handled only by binding arbitration — the final step in the procedure (Carrell & Heavrin, 2013). The arbitrator’s decision is final and binding on both parties; it can be appealed to the courts on a rather limited number of grounds, such as collusion or the arbitrator’s award exceeding their authority.
Discussion
Despite being a final step in the grievance handling procedure, arbitration has become a popular way of dispute resolution among U.S. employers. According to Carrell and Heavrin (2013), the rise of labor arbitration’s popularity stemmed from the rising litigation costs and large jury awards in cases involving discrimination. Judges also preferred arbitration since it significantly reduced their caseload (Carrell & Heavrin, 2013). However, the trend of increasing use of arbitration has been reversed in the last few years. For instance, on February 10, 2022, the U.S. Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which invalidated pre-dispute arbitration agreements for cases involving sexual assault (National Law Review, 2022). The Act will likely result in an increased number of grievance cases reaching the courtrooms. The traditional rules of evidence admissibility do not strictly apply in arbitration cases, and most arbitrators are open for evidence that would not be permitted in court (American College of Trial Lawyers [ACTL], 2018). However, in many instances, the employees are willing to reach the courtroom despite the stricter requirements for evidence admissibility
Current Trends in Evidence Admissibility for Arbitration
The rules of evidence are not controlling, so the arbitrators have the discretion to consider evidence that would be inadmissible in court. According to the ACTL (2018), the arbitrators often select a very liberal approach to evidence admissibility since the court may vacate an arbitral award if the arbitrator did not hear pertinent evidence. Therefore, the strongest trend in arbitration is the liberty of evidence admissibility. The arbitrators rely on their discretion to ensure the fundamental fairness of the proceedings.
However, such a let-it-all-in approach also leaves a possibility of potential exposure to evidence of questionable reliability. Given this situation, the ACTL (2018) created a list of best practices regarding evidence in arbitration. Most importantly, an arbitrator and the parties should engage in early and direct dialogue in evidentiary issues. An arbitrator should present their philosophy of evidence admission and solicit the parties’ feedback (ACTL, 2018). Other than that, the following types of evidence should not be admitted even under relaxed standards:
- evidence that is subject to the lawyer-client privilege or work product protection;
- unduly protracted or repetitive evidence;
- expert testimonies that opine on the ultimate question (however, scientifically-based opinions of qualified experts are admissible);
- marginally relevant evidence, where the relevance is outweighed by prejudice.
Conclusion
Overall, the variety of information that can be presented as evidence in arbitration proceedings is quite significant. The arbitrators typically avoid using traditional rules of evidence to ensure the fairness of the hearing. However, questionable evidence may trigger cognitive biases that would eventually tilt the outcome in favor of the offering party. Therefore, an arbitrator should develop and present a clear standpoint regarding evidence admissibility. Regardless, the evidence types mentioned above should not be admitted even if the arbitrator chooses a liberal approach to admissibility.
References
American College of Trial Lawyers. (2018). Best practices regarding evidence in arbitration. Web.
Carrell, M. R., & Heavrin, C. J. D. (2013). Labor relations and collective bargaining: Private and public sectors. (10th ed.) Pearson.
National Law Review. (2022). Employer alert – Senate clears way for major shift in banning arbitration agreements and class waivers for workplace sexual harassment disputes. Web.