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ARBITRATION CLASS 3 PowerPoint PPT Presentation


ARBITRATION CLASS 3. SEPTEMBER 3, 2008 LIMITS OF ARBITRATION EVIDENCE. THE EFFECT OF GARDNER-DENVER. GARDNER DENVER ALLOWS A UNION EMPLOYEE TO GO INTO COURT EVEN THOUGH THEY GRIEVED EMPLOYMENT DISCRIMINATION THROUGH A LABOR AGREEMENT

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ARBITRATION CLASS 3

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ARBITRATION CLASS 3

SEPTEMBER 3, 2008

LIMITS OF ARBITRATION

EVIDENCE

U OF O LAW SCHOOL--MIKE TEDESCO


THE EFFECT OF GARDNER-DENVER

  • GARDNER DENVER ALLOWS A UNION EMPLOYEE TO GO INTO COURT EVEN THOUGH THEY GRIEVED EMPLOYMENT DISCRIMINATION THROUGH A LABOR AGREEMENT

  • DISTINGUISHED BY NOTING THAT A LABOR ARBITRATOR IS LIMITED TO THE LABOR CONTRACT AND DOES NOT ENFORCE THE LAW

  • ALSO THERE IS A CONCERN IN LABOR ARBITRATION THAT THE RIGHTS OF THE INDIVIDUAL WILL BE SUBORDINATED TO THE RIGHTS OF THE LARGER BARGAINING UNIT

U OF O LAW SCHOOL--MIKE TEDESCO


RECONCILING GILMER WITH GARNER-DENVER

  • WHAT IS BEING WAIVED

  • WHO IS WAIVING IT

  • THE SUPREME COURT IN WRIGHT ADDRESSED THE ISSUE OF WAIVER AND SAID THAT FOR A WAIVER OF STATUTORY RIGHTS TO BE EFFECTIVE, IT MUST BE “CLEAR AND UNMISTAKABLE” AND THAT THE WAIVER MUST BE “PARTICULARLY CLEAR”

U OF O LAW SCHOOL--MIKE TEDESCO


Circuit City Stores, Inc. v. Adams, 279 F.3d 889 (2002)

U OF O LAW SCHOOL--MIKE TEDESCO


THE 9TH CIRCUIT DECISION

  • ON REMAND FROM A SHARPLY DIVIDED SUPREME COURT

  • EARLIER DECISION OF THE 9TH CIRCUIT WAS THAT THE FAA DID NOT APPLY TO THIS SITUATION, THE SUPREME COURT DISAGREED

U OF O LAW SCHOOL--MIKE TEDESCO


FACTS AND SETTING

  • ADAMS SIGNED AN AGREEMENT THAT ALL CLAIMS WOULD BE ARBITRATED

  • SEVERE LIMITATIONS ON DAMAGES WERE IMPOSED

  • THE COST WERE SHARED UNLESS THE EMPLOYEE WINS

  • UNDERLYING CLAIM WAS SEXUAL HARASSMENT

U OF O LAW SCHOOL--MIKE TEDESCO


THE WAIVER CLAUSE AND CALIFORNIA LAW

  • THIS IS A CONTRACT OF ADHESION

    • STANDARD FORM

    • DRAFTED BY A PARTY WITH SUPERIOR BARGAINING POWER

    • PRESENTED ON A TAKE IT OR LEAVE IT BASIS

U OF O LAW SCHOOL--MIKE TEDESCO


SUBSTANTIVELY UNCONSCIONABLE

  • SINCE IT WAS ONE SIDED-IT DEALT WITH ONLY THE EMPLOYEES CLAIMS

  • SINCE IT EXCLUDED DAMAGES THAT WOULD OTHERWISE BE AVAILABLE

U OF O LAW SCHOOL--MIKE TEDESCO


BUT WHAT ABOUT GILMER?

  • GILMER SAYS IN ARBITRATION YOU MUST BE ABLE TO PURSUE STATUTORY CLAIMS

  • THE COLE REQUIREMENTS WERE NOT MET REGARDING

    • UNREASONABLE COSTS

    • DOES NOT PROVIDE THE TYPES OF RELIEF AVAILABLE IN COURT

U OF O LAW SCHOOL--MIKE TEDESCO


EEOC V. WAFFLE HOUSE

  • 534 US 279 (2002)

  • JUSTICE STEVENS

U OF O LAW SCHOOL--MIKE TEDESCO


FACTS AND SETTING

  • BAKER WORKED THE GRILL

  • HE HAD A SEIZURE

  • HE WAS FIRED

  • HE FILED WITH THE EEOC WHO PURSUED AND ENFORCEMENT ACTION

  • COMPANY FILED TO COMPEL ARBITRATION

U OF O LAW SCHOOL--MIKE TEDESCO


THE CONTRACT TO ARBITRATE

  • ALL EMPLOYEES, AS A CONDITION OF EMPLOYMENT WERE REQUIRED TO SIGN

U OF O LAW SCHOOL--MIKE TEDESCO


THE ROLE OF THE EEOC

  • IT IS THE ENFORCEMENT AGENCY OF THE FEDERAL GOVERNMENT

  • IT CONTROLS THE PROCESS

    • EMPLOYEE MAY INTERVENE ONLY

  • IT CAN SEEK A WIDE VARIETY OF DAMAGES

  • THE EEOC WAS NOT A PARTY TO THE AGREEMENT

U OF O LAW SCHOOL--MIKE TEDESCO


HOLDING

  • THE COURT ENDORSES THE FAA AND ARBITRATION IN GENERAL

  • BUT THE COURT NOTES THAT THE FAA ENFORCES CONTRACTS AND THE EEOC WAS NOT A PARTY TO THE CONTRACT

U OF O LAW SCHOOL--MIKE TEDESCO


HOOTERS OF AMERICA V. PHILLIPS

  • THE AGREEMENT TO ARBITRATE IS INVALID IN LIGHT OF PROCEDURAL PROBLEMS

    • THE PROCESS SEEMS DESIGNED TO HELP THE COMPANY PREPARE A DEFENSE

    • ENSURE A BIASED DECISION MAKER (THEY CONTROL THE LIST)

    • THE COMPANY CONTROLS WHICH ISSUES GO FORWARD

    • THE COMPANY ONLY CAN TRANSCRIBE

    • THE COMPANY ONLY CAN VACATE

    • THE COMPANY CAN CHANGE THE RULES AT ANY TIME

U OF O LAW SCHOOL--MIKE TEDESCO


GETTING PRACTICAL

EVIDENCE/OBJECTIONS

U OF O LAW SCHOOL--MIKE TEDESCO


THE MECHANICS OF MAKING OBJECTIONS

  • SIT DOWN!

  • DON’T MAKE A SPEAKING OBJECTION

    • STATE THE BASIS FOR YOUR OBJECTION FIRST

    • STATE YOUR ARGUMENT REGARDING THE OBJECTION SECOND

    • ADDRESS THE OBJECTION TO THE ARBITRATOR AND NOT YOUR OPPONENT

U OF O LAW SCHOOL--MIKE TEDESCO

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HEARSAY EXCEPTIONS

  • PARTY ADMISSIONS

  • PRESENT SENSE IMPRESSION

  • EXCITED UTTERANCE

  • STATE OF MIND

  • STATEMENT MADE FOR MEDICAL TREATMENT

  • DYING DECLARATION

U OF O LAW SCHOOL--MIKE TEDESCO

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HEARSAY

OBJECTION IS RARELY SUSTAINED

  • GENERALLY IT WILL BE PERMITTED AND WILL BE GIVEN APPROPRIATE WEIGHT

  • WHEN THE OBJECTION IS SUSTAINED IT WILL BE BECAUSE

    • THE INFORMATION OFFERED IS REALLY NOT RELEVANT TO BEGIN WITH

    • THE HEARSAY IS FROM A WITNESS WOULD BE AVAILABLE

    • BECAUSE WHAT IS SOUGHT TO BE PROVED THROUGH THE HEARSAY IS SO CRITICAL TO THE CASE THAT THE ARBITRATOR FINDS THE TESTIMONY TOO UNRELIABLE

U OF O LAW SCHOOL--MIKE TEDESCO

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STIPULATIONS

  • ARE PERMITTED AND OFTEN SHORTEN THE HEARING BY AVOIDING WITNESSES TESTIMONY TO INFORMATION WHICH IS NOT IN DISPUTE

    • BEWARE OF STIPULATIONS THAT CAN DISRUPT THE FLOW OF YOUR CASE

U OF O LAW SCHOOL--MIKE TEDESCO

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JUDICIAL NOTICE

  • SAME RULES APPLY AS THEY DO IN COURT PROCEEDINGS

U OF O LAW SCHOOL--MIKE TEDESCO

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INTRODUCTION OF EXHIBITS AND TESTIMONY AND APPROPRIATE FOUNDATION

U OF O LAW SCHOOL--MIKE TEDESCO

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FOUNDATION

  • PROVIDES THE ARBITRATOR WITH INFORMATION THAT THE EVIDENCE ABOUT TO BE RECEIVED IS:

    • RELEVANT

    • ADMISSIBLE

    • RELIABLE

U OF O LAW SCHOOL--MIKE TEDESCO

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IF HARRY IS GOING TO TESTIFY TO SEEING THE CAR IN THE PARKING LOT

  • THAT HARRY CAN SEE

  • YOU MUST ESTABLISH THAT HARRY HAD THE OPPORTUNITY TO SEE THE CAR IN THE PARKING LOT

U OF O LAW SCHOOL--MIKE TEDESCO

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ANOTHER EXAMPLE: FOUNDATION FOR EVIDENCE REGARDING CONVERSATIONS

  • DATE

  • TIME

  • PLACE

  • WHO ELSE WAS PRESENT

U OF O LAW SCHOOL--MIKE TEDESCO

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FOUNDATION FOR DOCUMENTS

  • AUTHENTICATION THROUGH WITNESSES

  • TESTIMONY AS TO RECEIPT OF DOCUMENT—MAIL BOX RULES

  • ORIGINAL DOCUMENTS-NOT USUALLY A PROBLEM IN ARBITRATION

U OF O LAW SCHOOL--MIKE TEDESCO

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