Witness Collaboration in Arbitration

Recently I assisted the Navy in an arbitration hearing surrounding the interpretation of a contract with a federal employee union. The essence of the case was not just an interpretation, but also an initial issue of timeliness.

During my career, I was management’s advocate in quite a few cases over a broad spectrum of issues. Since the union was the moving party, they normally would go first.

In this case, management decided to present their case first, and the arbitrator allowed a very unusual procedure by permitting the union president, who was one of their leading witnesses, to sit second chair with the AFGE attorney and to hear all of managements witness testimony. The union’s witness list was short.

The arbitrator instructed the parties that all witnesses were not to collaborate with other witnesses during the proceeding.

Arbitrators are well aware of the “herd instinct” where witnesses convene to discuss what happened in their testimony and the questions asked by the opposing party. Often this leads to modifying their individual views to fit the desired conclusion their side hopes to reach.

This is exactly what the arbitrator wants to avoid. While this can be unintentional, collusion can take place in an effort to railroad an outcome. Both labor and management can be guilty of witness collusion. 

In labor relations, public or private, either collective bargaining agreements or union bylaws and constitutions prohibit members from testifying against another member or the union itself. Upon reading the transcript after the hearing, it was quite evident to me that there was collusion among the union witnesses where three of their main witnesses’ testimonies lacked candor, and it was conveniently consistent in opposition to management’s witnesses.

Memories can be faulty, and this alone may cause witnesses to talk among each other during the course of the proceeding. This should be covered in witness preparation that I have twice written about in earlier articles.

Here is where the advocate lays out a “theory of the case”, how they intend to demonstrate and prove actions, and how each witness is a major protagonist to advance their theory. Serving as a witness can take a person out of their comfort zone, and that is another reason why pre-hearing witness preparation is so important. 

When there is the appearance of witness collusion, arbitrators will look to rely more on other evidence. Practitioners should look at Hillen v. Department of the Army, 29 M.S.P.R. 690. (1986).

What are the Hillen Factors? Here the MSPB judge or arbitrator must consider the following factors in making and explaining a credibility determination:

1. The witness’s opportunity and capacity to observe the event or act in question;
2. The witness’s character;
3. Any prior inconsistent statement by the witness;
4. A witness’s bias, or lack of bias;
5. The contradiction of the witness’s version of events by other evidence or its consistency with other evidence;
6. The inherent improbability of the witness’s version of events; and
7. The witness’s demeanor.

Again, a sharp advocate will include these in their witness preparation to not only bolster this person’s knowledge of direct evidence, but also how their demeanor on the stand can influence the arbitrator— how crisp and sure was their testimony?

I would also suggest that all witnesses be included together at the same time so each can learn just how the others respond to questions. This aids in repairing faulty memories, adds consistency, and allows a weaker witness to learn from stronger witnesses style points to enhance credibility. 

In the above case, the union’s witnesses waffled and lied, and it was the excellent preparation by Navy’s advocate that allowed her to catch them in their lies, and to diminish their credibility at the hearing.

It is still unknown at the time of this writing as to the outcome of this case, and arbitrators are notorious in concealing their opinions in the award as to whether they believe witness collusion took place. Instead, they will put forward how the evidence determined the outcome.

Arbitrators often have strong opinions about lies, omissions, and the appearance of collusion in witness testimony. They are aware it happens, but when it comes to writing their decision and order they do not identify who they did not believe.

Arbitrators are more diplomatic in their decisions, and this can be very instructive to advocates to put forward their arguments in the same fashion. It is more convincing to advance what is believable, and why the outcome should be determined in a certain way.

Because there is the major threshold issue of timeliness, I am confident that the Navy should prevail on both fronts. The union proffered an argument that while the grievance decision stated it was not timely, it did not include a statement that it was therefore not subject to arbitration. They are convinced that the grievance is timely. I do not personally buy that argument because to demonstrate that a grievance is not timely, and to then say it is not arbitrable is redundant. 

On the issue of contract language interpretation, the management’s advocate deftly demonstrated the consistency of management’s adherence to the language in the expired contract, as well as the negotiations in the previous contract.