Arbitration -- Labor Disputes -- Hearsay

Because they are not bound by the legal rules of evidence, arbitrators have significantly more discretion that judges to determine what will be considered admissible information. One of the greatest areas of discretion is with evidence classified as hearsay. Of course, this is also one of the areas of greatest contention; since the guidelines are much more fluid, parties in arbitration proceedings may spend a great deal of time arguing for the inclusion or exclusion of specific information.

Hearsay

Generally, hearsay refers to second-hand evidence that is submitted for the purpose of establishing the truth of a specific claim. In legal terms, hearsay is defined as a statement of another statement made "out of court." The difficulty with hearsay is twofold. First, the credibility of the witness must be established. Even once that is done, however, there is typically no way to prove that the statements hear and recounted were accurate.

Based on the context of the information, as well as the purpose it is supposed to serve, evidence that is hearsay may or may not be deemed acceptable by an arbitrator. The arbitrator may also choose to allow the evidence, but with a qualification as to how it will be regarded.

Types of Hearsay

The most common type of hearsay is that which arises during live testimony. A witness, rather than giving an account of events he saw, will relate things he heard someone else say. In the case of labor disputes, this may include comments about negotiations and comments made to or about other employees. It is usually considered acceptable to admit hearsay evidence when it serves to establish that specific statements were made, but not to establish the truth or intent of those statements. (An example might be an employee who overheard a supervisor sexually harassing another employee; he can relate what he hears, but cannot establish whether the supervisor's promise of advancement in return for sexual favors was real.)

Forms of testimony that are not live (such as depositions, affidavits, and transcripts of earlier proceedings), are also classified as hearsay evidence. Whether or not an arbitrator will accept them as evidence will depend largely on the context. Depositions are generally acceptable since they involve the statements of a witness as well as a cross-examination. In the case of arbitration, depositions may actually be used as a time and money-saving way of obtaining testimony. Affidavits (which are statements by a witness without any cross-examination) are less desirable and are usually accepted only when the witness is unable to testify in person. Even when admitted, affidavits may not carry the same weight as live testimony or testimony given through a deposition.

Additionally, some documentary evidence (such as personnel records and doctor's notes) technically falls into the category of hearsay. Again, admissibility depends on the context and perceived reliability of the information. Personnel records are usually admissible, provided it can be established that they are maintained securely and in the normal course of business. Doctor's notes are often acceptable as well, since it can be time consuming and expensive to have medical professionals testify in person. Of course, if the legitimacy of the party's health claims is in question, this may not be the case. Another document that may be admissible is a letter or note making certain statements or complaints about an employer or employee. It is important to remember, however, that documents will only be entered to prove that such statements were made, not that they are true.