Law and Arbitration Offices of Donald T Ryce

            While the legal rules regarding after-acquired evidence can be somewhat complex in employment cases, arbitrators often apply a fairly simple rule in labor arbitrations: the employer may rely only on those facts that were known to exist as of the time discipline on the employee was imposed. See e.g. Safeway, Inc., 105 LA 718, 722 (Goldberg, 1995) (a discharge "must rise or fall" raised on the facts as they were known at the time of the termination). Arbitrators have advanced a number of reasons for this view, sometimes relying on the belief that arbitral due process requires that a fair and thorough investigation into the facts be conducted by the employer prior to imposing discipline, or that it is unfair to the employee not to disclose all of the grounds for the discipline during the grievance process. However, occasionally even arbitrators applying this somewhat strict rule will permit the introduction of after-acquired evidence discovered after an employee's discharge to go to the issue of determining an appropriate remedy. Lenox Hill Hospital, 102 LA 1071 (Simons, 1994) (the post-termination discovery of falsified statements on an employment application did not warrant dismissing the grievance but was admissible on the remedy issue).

            Generally speaking, arbitrators particularly frown on the deliberate withholding of evidence during the grievance procedure when it is a deliberate effort to surprise the other party at the arbitration hearing. As one arbitrator has put it, “[S]ound collective bargaining requires frank and candid disclosure at the earliest opportunity of all the facts known to each party. … There is not a scintilla of justification for the withholding of information by either party from and after the time it is discovered.”  General Motors Umpire Decision No. F-97 (1950).

            While arbitrators may vary on how they apply the after-acquired evidence rules, a party would be wise to rely on certain general principles. First, any evidence materially relating to an issue in an arbitration case should be disclosed to the other party as soon as possible after its discovery. Second, employers should make sure that the Grievant, or his or her union representative, is given an opportunity to respond to damaging evidence prior to the arbitration hearing, and the employer should be prepared to explain to the arbitrator why the rebuttal is insufficient. In short, as is true in virtually every kind of case, it is important to give the decision-maker, whether arbitrator, jury or judge, the impression that the employer has been fair.