Advocacy in Labor Arbitrations, 1020 COBJ, Vol. 49, No. 9 Pg. 46

AuthorBY MARSHALL SNIDER
PositionVol. 49, 9 [Page 46]

49 Colo.Law. 46

Advocacy in Labor Arbitrations

Vol. 49, No. 9 [Page 46]

Colorado Lawyer

October, 2020

LABOR AND EMPLOYMENT LAW

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 t he 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...

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