Ontario Association of Police Services Boards, 2014 Labour Seminar ARBITRATION TRAINING Seann D. McAleese

Ontario Association of Police Services Boards, 2014 Labour Seminar

ARBITRATION TRAINING

Seann D. McAleese

OAPSB Labour Seminar - 2014

ROLE OF THE ADVOCATE

• The purpose of the exercise is to reduce the complex and confusing to simplicity, logic and order – most of all, believability!


THREE MAIN ABILITIES OF SUCCESSFUL ADVOCACY

• Ability to prepare• Ability to organize• Ability to convey


THE SUCCESSFUL ADVOCATE THINKS

• Good judgement requires thought• Thinking the matter through is the only way to

reduce complexity to elegant, believable, simplicity


SWEATING THE DETAIL

• Why your side should win• The facts you need to establish to win• What evidence is needed• How to prove the things you need to prove• What legal issues must be resolved to do so• What evidence the other side will likely lead and

what to do about it


Key Parts in an Arbitration

1. Investigation

2. Preparation

3. Litigation


INVESTIGATION

• What is the case all about?• Getting the documents• Interviewing witnesses• Visiting the scene• Timing of investigation


INTERVIEWING WITNESSES

• First Steps• Preparation

• Make a binder

• Make a player’s list

• Start your chronology

• Who’s at the meeting?• No “friends” of the witness

• Association Rep for bargaining unit witnesses?

• Supervisor

• Location of meeting



• Take good notes• Handwritten v. typed• Organize the notes

• by witness

• then for opening/closing



• Establish rapport – don’t cut to the chase• Let them tell the story• Be supportive



• Don’t let the witness think that the case rests on his/her shoulders

• Broaden your fact base• Ask open ended questions• Go back and get details



• Listen more than you talk• Pay attention – don’t take calls, read e-mails• Evaluate – do I need and/or want to call this

witness?



• Be aware of the witness demeanour during the interview

• Watch the witness with benevolent scepticism• Question – is he/she credible?



• Different Kinds of Witnesses• set-up

• background

• factual

• decision maker



• Gather the names of other possible witnesses• Role play• Advise of further meetings potential



• Describe the hearing to the witness• Describe the room• Describe the arbitrator• Explain body language

• open v. closed positioning



• Use the client’s experience• Draw detail from that experience• Maintain the client’s confidence


DOCUMENTS

• From the Board• From the Association / Grievor• From a Third Party

• customer/citizen

• City

• WSIB

• Medical records


DOCUMENTS

• Do you disclose ahead of time?• Do you request disclosure of their documents?• How do you respond to their request for

disclosure?


DOCUMENTS

• Originals not necessary, have available• E-discovery relevant• Subpoena – s. 48(12) OLRA, silent under PSA

• statutory power and procedural fairness

• How far is too far? Fishing expedition?


SCENE PRESERVATION

• If a picture is worth a thousand words, a site visit is worth ten thousand

• Pictures• Perspective• Floor plan


SCENE PRESERVATION

• Distances• Obstructions • Lighting• Weather conditions


SETTING UP THE ARBITRATION

• s.123(1) PSA first Conciliation• s.124(2) PSA then appointment for arbitration

• Commence within 30 days unless agreed

• sole arbitrator or panel?

• Mediation/Arbitration• Arbitration only• Solicitor General pays if making appointment


TYPE OF ARBITRATOR

• Selection of Decision Maker• Style and Experience of Decision Maker• Availability of other dates for continuation• Knowledge of parties• Knowledge of the grievor• Past history on the topic


PRELIMINARY ISSUES

• Referral to Arbitration• Timeliness

• s. 49 / s. 50 OLRA

• Collective Agreement provisions

• Mandatory v. Permissive provision

• but s.124(2) PSA, not timeliness issues• but laches / delay may prejudice


PRELIMINARY ISSUES

• Adjournments• Consensual

• Who pays?

• Contested

• Reasons for request


OPENING STATEMENT/CLOSING ARGUMENT

• Persuasion is the purpose• Preparation of both opening and closing is

imperative


OPENING STATEMENT/CLOSING ARGUMENT

• Opening: sets stage• Closing: ties it all together• Both have same objective, there are some

differences


OPENING STATEMENT

• Purpose is to draw roadmap for arbitrator – dovetail with closing

• No pleadings in arbitration• First impression of case

• Does your arbitrator decide case in first five

minutes?


OPENING STATEMENT

• One competing consideration is that you also educate the other side

• 3 main types of opening:• “Full” opening

• “Minimal” opening

• Middle ground


OPENING STATEMENT

“Full” Opening• Full description of case• Detailed outline of evidence• Conclusions to be drawn on facts• Issues to consider


OPENING STATEMENT

“Full” Opening• Submissions on issues

• (maybe some law)

• Conclusion• Purpose can be to show the Association what is

coming at them – allows them to have ammunition to use against grievor

• Gives arbitrator full facts to lean on Association


OPENING STATEMENT

“Minimal” Opening• Statement of what issues are and position of

employer but little else• Often used by the union• Use when you are not sure of the facts or

strenght of your position


OPENING STATEMENT

Middle Ground• Identification of Issues, outline of facts and

conclusion you will ask arbitrator to draw• Normally use Middle Ground; others used much

less often• Remember, the party asserting the breach

generally proceeds first


OPENING STATEMENT

TIPS:• Don’t overstate case• Only outline what you’re confident you can prove• Case will suffer otherwise if you don’t prove

something you said you would• Your credibility will suffer


OPENING STATEMENT

TIPS:• If problem in case – deal with it [other side will]• Deal with other side’s arguments – as briefly as

you can• Don’t be too long


OPENING STATEMENT

TIPS:• Reply to Association opening:

• be brief

• can knock down other side’s case

• don’t repeat your own case


EVIDENCE OUTLINE

BACKGROUND• Name• Current Position• Employment History (both with Board and before)• Education (if relevant)• Purpose of Involvement in the Case


EVIDENCE OUTLINE

• The nature of the Department’s operations• Location• People• Total # of unionized employees

• full-time

• part-time

• non-union


EVIDENCE OUTLINE

• Witness’ classification• How many other person’s hold same rank• Witness’ duties and responsibilities• Make witness look credible• Lead witness through this evidence


EVIDENCE OUTLINE

EVENTS• Date of Event• Location• Beginning Time (Approx.)• Ending Time (Approx.), if needed


EVIDENCE OUTLINE

EVENTS• Persons Involved in the Event• Relevant Conditions (weather, lighting, etc.)• If recorded, how event was recorded (video, voice

tape, contemporaneous notes, other notes, other)


EVIDENCE OUTLINE

EVENTS• Significant things happening before the event• Significant things happening after the event• Sequence of events


EVIDENCE OUTLINE

TERMINATED EMPLOYEE• Start date• Current Position• Employment History (both with current employer and before)• Education (if relevant)• The seriousness of the offence in terms of Board policy and

employment related obligations• The record of the grievor• The long service of the grievor


EVIDENCE OUTLINE

TERMINATED EMPLOYEE• Whether or not the offences was an isolated

incident in the employment history of the grievor• Whether there was provocation (details)• The nature of the offence (its seriousness)


EVIDENCE OUTLINE

TERMINATED EMPLOYEE• Evidence that Board rules of conduct, whether

unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination

• Was the event spur-of-the-moment misconduct? (details)

• Was the conduct systematic and repetitive? (details)


EVIDENCE OUTLINE

TERMINATED EMPLOYEE• Was the conduct premeditated, planned and

deliberate?• Did the misconduct involve a breach of trust?• Did the grievor fail to apologize and settle the

matter after being given an opportunity to do so?


EVIDENCE OUTLINE

TERMINATED EMPLOYEE• Did the Board fail to permit the grievor to explain or

deny the alleged offence?• Was there bona fide confusion or mistake by the

grievor as to whether he/she was entitled to do the act complained of?

• Did the grievor have an inability due to impairment or emotional problems, to appreciate the wrongfulness of his/her act? (detail)


EVIDENCE OUTLINE

TERMINATED EMPLOYEE• Was the harm done relatively trivial?• What are the grievor’s future prospects for likely

good behaviour• Is there extraordinary economic hardship arising

from the termination? (detail)


PRACTICAL TIPS FOR EXAMINING WITNESSES

EXAMINATION-IN-CHIEF• Use first name of witness• Use a conversation tone• Take your time (watch the arbitrator’s pen!)



EXAMINATION-IN-CHIEF• Ask focussed yet open ended questions. DO NOT

LEAD• Set the stage first for the arbitrator• Then deal with the specifics of the case



EXAMINATION-IN-CHIEF• Deal with evidence chronologically• Refresh memory if necessary with identified

documents• Have a calendar handy



EXAMINATION-IN-CHIEF• Consider aids to testimony (pictures, diagrams,

chronology of events)• Deal with anticipated unflattering evidence at the

outset. Avoid the appearance of trying to hide evidence.

• If credibility case, be upfront with admissions against interest



EXAMINATION-IN-CHIEF• Confront with prior inconsistent statements.

Remind witness of earlier statement. Ask witness to assist in terms of which statement should be accepted.

• Get witness to agree that her recollection is not as clear as had originally led us to believe

• Confront with contrary evidence of another witness (Browne & Dunn rule)


YOUR WITNESS SHOULD BE PRESENTABLE

• The witness should be dressed in business casual for the hearing

• The witness should be on his or her best manners, respectful demeanour


SHOULD YOUR WITNESS TALK TO THE OTHER SIDE?

• There is no property in a witness – so it is proper for counsel for the other side to seek to talk to your witness

• A summons only compels attendance at the hearing

• The witnesses are not obligated to speak to anyone before they testify


DEALING WITH THE NERVOUS WITNESS

• You may be more nervous than the witness but it does not help to tell them that

• Try the “sheep theory” if it is true, namely, tell the witness that he/she is just one of many who will be coming to testify in this matter

• Put bargaining unit witnesses under subpoena


OBJECTIONS - WHY OBJECT

• Opposing counsel is asking an objectionable question

• The witness is giving an objectionable answer• You want to disrupt the rhythm of the other side• You want to annoy the other side


OBJECTIONS - HOW TO OBJECT

• “I object”• State the reason• Get the witness to stop talking


USE OBJECTIONS SPARINGLY

• Not unless you have a good objection• Not unless the answer will hurt you• Rarely in opening or final arguments


OBJECTIONS EXCUSE THE WITNESS

• When you make an objection, and what you say may help the witness, ask the chair to excuse your witness from the room

• Do this to preserve the integrity of the evidence• You do not want the witness to learn from the

debate


SHOW GOOD GRACE WHEN YOU LOSE AN OBJECTION

• Do not show temper or grief• Do not take it personally• Do not re-argue the point• Thank the arbitrator and move on


COMMON OBJECTIONS TO QUESTIONS ASKED IN CHIEF

• The question relates to an irrelevant issue.• The question is leading, in that it hints at or

suggests the answer, or assumes a fact that has not been proved. The question lacks a proper foundation because it presumes a background of fact which has not been established.

• The question invites a hearsay answer, or the answer contains hearsay, rather than a statement of facts based on personal knowledge.



• The question calls for, or the answer contains, an opinion, although the witness has not been qualified as an expert.

• The question calls for speculation or a hypothetical answer, rather than facts.

• The questions invites a legal opinion regarding interpretation of the collective agreement, and this is a matter for the arbitrator to decide.



• The question relates to a “privileged matter”, such as discussions during the grievance procedure.

• The question contains a misstatement of evidence that has previously been given.

• The question involved several questions which cannot be answered at the same time, i.e. it is a compound question.


PURPOSE OF CROSS- EXAMINATION

• To elicit favourable testimony• To attach credibility• To attack the reliability of the evidence


CROSS-EXAMINATION IS TOUGH

• The witness is hostile• The story may be changing or unknown• You are on stage: cross-examination is supposed

to be dramatic• You may not have a clue what to ask


HOW TO PREPARE FOR CROSS-EXAMINATION

• Maintain a running list of questions• Decide what you would like to get out of the

witness• Get in quick and get out• Be content with a “single” rather than trying to a

“home run”• you might strike out


CROSS-EXAMINATION – ASKING QUESTIONS

• Simple• Clear• Closed


EXAMPLES OF CROSS-EXAMINATION

The Dream• The witness gives you the dream answer that

makes your case• Do not celebrate• Stop asking questions



The Reality• The witness fights you with each answer• Try to show how unreasonable the witness is• Show the conspiracy theory or concocted

evidence


PRACTICAL TIPS FOR CROSS-EXAMINING WITNESSES

EXAMINATION-IN-CHIEF• Do not attack credibility if not a credibility case.

Always be mindful of ongoing labour relations reality.

• Nail down timing or chronology of events. Even if witness cannot give dates, establish when the events occurred relative to one another.

• Insist on “yes” or “no” answers to specific questions


PRACTICAL TIPS FOR CROSS-EXAMINING WITNESSES

EXAMINATION-IN-CHIEF• Probe when a witness “can’t recall”

• get witness to agree that certain events were significant or unusual

• query why witness can’t recall what would/should have been a

significant event

• avoid the “is it possible?” question when the witness says “I can’t recall”

• Probe conversations in terms of what prompted, who initiated, who participated

• Know when to stop. Don’t give the witness multiple opportunities to confirm evidence harmful to your case. Cut your loses and move on.



Do Not Cross-Examine Unnecessarily• Avoid the witness who has not hurt your case• Consider doing a “fake” cross examination

• “Mr. Jones, have you discussed your evidence with

any person prior to giving testimony today?”

• Sometimes you may feel the need to do a tough sounding cross-examination that does not go near substantive issues



Do Not Simply Repeat the Direct Examination

Q = “Is it your testimony that the grievor hit Mr. Jones?”

A = “That’s correct”

Q = “With his fist hard in the face, is that what you say?”

A = “Right!”• Your repetition simply emphasizes evidence which is

harmful to you


CONTROL THE WITNESS

• The key to an effective cross-examination is control of the witness

• The witness who is allowed to pursue his or her own agenda will ruin your cross-examination


CONTROL THE EVASIVE WITNESS

Q = “Mr. Jones, you have never asked the grievor for his explanation, correct?”

A = “I remember being very busy in May, blah blah…”

Q = “Mr. Jones, let me repeat my question. You have never asked the grievor for his explanation, correct?”

A = “Correct”• Ask your question until it is answered. If necessary,

ask the chair to direct the witness to answer.


CONTROL THE WITNESS WHO WANTS TO QUESTION

Q = “Mr. Jones, you have never asked the grievor for his explanation, correct?”

A = “Why should I?”

Q = “Mr. Jones, I am the one who is asking the questions here. I will repeat my question: you have never asked the grievor for his explanation, correct?”

• Ask your question until it is answered. If necessary, ask the chair to direct the witness to answer.


CONTROL THE SIDE-TRACKING WITNESS

Q = “Were you in the gym on January 4th?”

A = “Now that you mention the gym, I had a conversation about the promotion with the grievor in the gym back in July.”

Q = “Mr. Jones, we may talk about that conversation or we may not. But my question to you is very simple: were you in the gym on January 4th?”

• The interesting answer can side-track you. Write it down for later and get your first question answered.


CONTROL THE RUN-ON WITNESS

Q = “Were you in the gym?”

A = “Yes, but that was before I got the phone call to go to the ball game, whereupon blah, blah, blah…”

Q = “Mr. Jones, I did not ask you about what you did after you were in the gym. Please answer my question only or we will be here all day, do you understand?”

• Witnesses are allowed to explain but not to simply use the question as a spring-board to give a diatribe.


DO NOT USE “I PUT IT TO YOU” UNNECESSARILY

• Use it only when you want the arbitrator to know that you are presenting a question out of a duty knowing the witness will deny it.

Q = “Mr. Jones, I put it to you that you set up the grievor for failure by assigning him to that work unit, isn’t that so?”

A = “Not so.”


HANDLING ZINGERS

Q = “Mr. Smith, you had no right to deduct that amount from his pay, did you?”

A = “We’ve always done it that way – a million times.”

Q = “Mr. Smith, I want you to take as much time as you need, and tell me every such occasion, with dates, times and the individuals involved.”

• If you get zinged, you may have to take a risk and call the witness’ bluff.


COMMON OBJECTIONS TO QUESTIONS ASKED ON CROSS-EXAMINATION

• The question is irrelevant to the issues, and is not designed to test the witness’ credibility.

• The question relates to privileged matters, such as discussions during the grievance procedure.

• The question calls for an opinion, although the witness is not qualified as an expert.



• The question calls for speculation or a hypothetical answer, rather than facts.

• The question lacks a foundation in that it suggests facts which have not yet been proved in evidence.

• The question suggests misconduct, although the advocate asking the question has no evidence to support it.



• The question includes a misstatement of previous testimony.

• The questioning is unduly harsh and oppressive, and is designed to bully or badger, demean or ridicule.

• The question is confusing, or it includes several questions which cannot be answered at the same time, i.e. it is a compound or double-barrelled question.


PURPOSE OF FINAL ARGUMENT

• Take advantage of the final opportunity to present your case.

• The last best opportunity to persuade the arbitrator.


STEP 1 – EXPLAIN THE NATURE OF THE CASE

• Simple and clear

e.g. This case concerns the termination of employee

X for cause. The issue is whether the theft of the

office supplies constitutes theft of Board property.


STEP 2 – SUMMARIZE THE MAIN POINTS

• What is your argument today?

e.g.. Our argument has three main points:

1. The Board has a policy prohibiting employees

from taking office supplies;

2. The Grievor signed an acknowledgement that he

understood this policy; and

3. The Grievor breached this policy when he took

home two packages of pens and paper.


STEP 3 – SUMMARIZE THE FACTS

• What happened?

e.g. On July 15, 2014 the Grievor went into the storeroom and took two packages of pens and paper. He put these in his briefcase and took them.


STEP 4 – ARGUE THE LAW

• Develop argument on each issue by summarizing legal principles, citing cases and referring to relevant facts.


RESEARCHING THE LAW

• Preliminary issues• Evidentiary issues• Final Argument


BEST SOURCES FOR ARBITRATION LAW

• Ontario Police Arbitration Commission• Brown & Beatty, Canadian Labour Arbitration• Palmer, Collective Agreement Arbitration Canada• Labour Arbitration Canada – Mitchnick &

Etherington• Labour Arbitration Cases• Canadian Labour Arbitration Summaries


STEP 5 – WHAT RELIEF DO YOU SEEK

• Tell them what you want• Discuss grievance• Uphold discipline or Board interpretation of

collective agreement• Remain seized if you award a remedy• Remain seized for implementation and

interpretation of decision


REFERRING TO AUTHORITIES

• More is not necessarily better• Don’t read the entire citation - “The decision of

arbitrator Burkett in CUPE v. City of Toronto” will do

• Do not race through the case; let the arbitrator keep up with you

• Hi-lite the case


LEGAL SUBMISSIONS

• Don’t use legalise or Latin that you are not familiar with

• Don’t misstate evidence• Be accurate about the law• Point out parts of the cases that are easily

distinguishable• Don’t patronize the arbitrator if using one of the

their cases


ARBITRATION HEARING TIPS

Hearing Room Set Up• Sit on the arbitrator’s right side (or closest to the

electrical outlet if needed)• Make sure advisor sitting next to advocate• Where will the witnesses sit when giving

evidence?• At the end of the arbitrator’s table or at a separate

witness table



Hearing Room Set Up• Set out your documents before the arbitrator gets

there• Do you have enough copies for all parties, the

arbitrator and a witness copy

• Have the exhibits easily available

• Have copies of documents for witness (do not use

the arbitrator’s)



• Talk to the union lawyer to ensure that you understand what their position will be on the issues in consideration (or, in an appropriate case, provide them with written notice of the company’s position on these issues in advance)

• Preliminary issues

• Who goes first

• Who are they going to call as witnesses

• Are there any documents that they will be relying upon which

they have not given you

• How long do you think that you will be in opening, calling each

witness, in argument?



• Consider an exclusion order• Grievor gets to stay as a right

• Who will you keep as an advisor?

• If you are going first – then don’t name your first

witness as your advisor

• Have an appearance sheet


BE AN ADVOCATE

• Be yourself• Control your temper• Tone – strong, but informal• Display quiet confidence• Don’t celebrate when you get a “good point”• No facial expressions• Make eye contact – don’t just read

Ontario Association of Police Services Boards, 2014 Labour Seminar

ARBITRATION TRAINING

Seann D. McAleese

Documents

Ontario Association of Police Services Boards, 2014 Labour Seminar ARBITRATION TRAINING Seann D. McAleese