Understanding Quantum of Proof
I’ve seen a big uptick in the number of unions asking that I apply a “clear and convincing” standard in discipline arbitrations and I wonder why. Perhaps a group of union attorneys agreed that they would separately make the argument to see whether they could shift the jurisprudence in this area. Perhaps it’s more common in certain industries and I’m just noticing it now. Perhaps some other arbitrators are using the standard and I’m the only one who wasn’t aware that it’s becoming commonplace. Or perhaps it’s a coincidence.
Let me back up and explain what I’m talking about. If you’ve watched a single episode of a police procedural, you know what the burden of proof is. The burden of proof is the onus put on one party to put forth evidence that supports the outcome they are requesting from the court. In criminal cases, the burden of proof is on the prosecutor because it is there job to put on the evidence. How much evidence? In a criminal case, it’s enough evidence to show “beyond a reasonable doubt” that the defendant is guilty.
We sometimes call that the “quantum of proof,” i.e. the amount of proof needed to prove your case.
In a discipline case in labor arbitration, the employer has the burden of proof. Typically, the amount of proof needed is “a preponderance of the evidence” in ordinary disciplinary cases.[1] To me, a preponderance of the evidence requires that the employer must show that it is more likely than not that grievant’s misconduct occurred and the misconduct warranted the level of discipline involved.
Arbitrator Norman Brand notes that in cases where the alleged act is of a criminal nature and involves moral turpitude, a higher standard, such as “clear and convincing evidence,” may be appropriate.[2] As I understand it, in cases such as theft (an act of a criminal nature), an arbitrator might require that the evidence “convinces” them of the grievant’s guilt. Begin convinced that something has occurred is a higher threshold than “more likely than not” that something occurred.
Personally, I have not needed to apply a “clear and convincing” standard in any case, even those involving allegedly criminal acts and moral turpitude, either because the union or the grievant did not dispute that the underlying misconduct occurred or because the evidence was overwhelming and it didn’t matter what standard I applied. Perhaps in the case that I am remembering (involving domestic violence against the grievant’s fiancé), I did apply clear and convincing. In any case, this standard is generally understood to apply to cases involving criminal acts and moral turpitude.
So again, why are unions requesting this standard in other cases? Generally, in the cases where the union has requested the application of this standard that are not of the type I described, the union asserts that the allegations will bring disrepute to the grievant if they are upheld. Is there a particular kind of “disrepute” that warrants the use of the higher standard? Again, if someone is accused of criminal acts and moral turpitude, an arbitrator’s finding would shine a light on the grievant’s behavior that might bring him discredit and even make it difficult to work in his field again. But I question whether upholding a discharge for attendance issues or insubordination would cause a grievant to be shunned from their profession.
Other arbitrators disagree with me, and apply the “clear and convincing evidence” standard in almost any discharge case where the outcome might affect the employee’s ability to find another job. The problem for me is that this creates another area of evidence that needs to be explored. If a union claims that a grievant has suffered reputational harm and thus needs a clear and convincing evidence standard, shouldn’t the union have to demonstrate that there was actually reputational harm?
I guess I’m defending the “preponderance of the evidence” standard for a few reasons:
1. A different standard requires so much more evidence, much of which is not necessary to resolve the case. It elevates the grievance process to a litigation style procedure that negates the purpose: fast, fair and efficient arbitration awards.
2. The additional evidentiary requirements create a greater financial burden for the parties. The Union is using member dues to defend employees whose conduct should not be condoned and whom other employees might prefer be removed from the workplace. The Employer is expected to keep employees solely to avoid expensive removal processes rather than ensure they have employees who are appropriate for their workplace.
3. Unions face the possibility that at some point, employers will request that the standard in contract dispute grievances be changed to clear and convincing evidence, making it more difficult for unions to prove contract violations.
The status quo is often reached because alternative approaches did not work. It’s worth reconsidering the status quo but overturning it isn’t appropriate in every circumstance. As usual, I put forward these ideas in the spirit of discussion I also know that every CBA and every workplace is different and entitled to create its own rules. I’m interested in hearing what other people think about this.
[1] Elkouri & Elkouri , How Arbitration Works, 6th Ed. (2003), p. 950
[2] Brand, Norman, Editor-In-Chief, Discipline and Discharge in Arbitration (2003), p. 335
