Labor Relations Fundamentals for Community College Districts

10. R EASONABLENESS In the absence of other factors to guide the interpretation of contract language, arbitrators will generally adopt an interpretation that provides a reasonable outcome (or the most reasonable, if there is more than one plausible interpretation), to the conflict. B. S TANDARDS OF P ROOF AND E VIDENCE Although arbitrators usually try to avoid applying purely technical standards of proof or evidence, they may resort to such criteria at times, particularly if the case seems otherwise inconclusive. Some of the more commonly used criteria of this sort are:

 Burden of Proof . The “moving party,” the party that has taken action to change the status quo, may be expected to bear the burden of proof. If both sides’ cases appear equally strong, then the moving party will have failed to prove its case. In disputes involving interpretation of contract language, the grievant (e.g., union) is almost always identified as the moving party.  Hearsay Evidence . If a witness testifies as to what he did or saw, his testimony carries more weight than if he testifies as to what someone else told him has happened.  Offers of Compromise While Processing the Grievance . Offers by one party or the other to settle a grievance on terms less than those being pressed by the party at the arbitration hearing normally won’t be considered in arbitration. Arbitrators recognize that parties will make offers of settlement for any number of reasons other than an acknowledgment of the weakness of one’s legal position. A party, for example, may be willing to compromise what it firmly believes is one of its contractual rights in order to avoid the expense of going to arbitration. However, prior settlement(s) of the issue(s) may be evidence of intent (or past practice).

C. E FFECT OF B INDING A RBITRATION Once an arbitration award is issued pursuant to a binding arbitration agreement, the standard to vacate the award is high. Even if the arbitrator’s decision was clearly wrong on the facts or on the “law,” it will normally be upheld if it drew its “essence” from the labor agreement. An award can be vacated by a court of law based on:

 Corruption, fraud, or other undue means used to procure an award;



Corruption of the arbitrator;

 Misconduct of an arbitrator that substantially prejudiced the rights of the petitioning party;

 Arbitrator refusal to postpone the hearing for good cause;

Labor Relations Fundamentals for Community College Districts © 2019 (c) Liebert Cassidy Whitmore 49