Originally from Dispute Resolution Journal

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INTRODUCTION

During the past decade arbitration has emerged as an essential technique in solving various labor-management disputes. While tremendous strides have generally been made in the field, problems have been encountered by arbitrators. Some of these difficulties can be attributed to the fact that the legal rules of evidence do not apply before the labor arbitrator. Parties arbitrating under the rules of the American Arbitration Association are subject to Rule 28 which provides, in part: "The Arbitrator shall be the judge of the relevancy and materiality of the evidence and conformity to legal rules of evidence shall not be necessary."

As a result of this informal application of rules, recent attention has focused upon the uses of misconduct in the arbitration proceeding. So far, such uses of past misconduct have been brought into the arbitration proceeding in the following manner: one, to show the grievant's bad conduct, if the grievant shows good conduct;2 two, impeaching the grievant's credibility as a witness;3 three, substantiating a current but functionally unrelated offense in discharge cases;4 and, four, proving that the penalty which has been imposed is appropriate.5