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NCJ Number: 136245 Find in a Library
Title: Burden of Proof in Criminal Offenses or Moral Turpitude Cases
Journal: Arbitration Journal  Dated:(December 1991)  Pages:45-48
Author(s): R M Kelly
Date Published: 1991
Page Count: 4
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United States of America
Annotation: This article examines the premise that using the criminal standard for burden of proof, beyond a reasonable doubt, is not appropriate in labor arbitration because many of the underlying assumptions are out of date or invalid.
Abstract: The author contends that there is probably no compelling reason, even in cases involving criminal offenses and moral turpitude, to apply the burden of proving misconduct beyond a reasonable doubt rather than applying the more usual clear and convincing evidence standard. Further, he argues that while human nature tends to apply some higher standard of proof in any case where the labor arbitrator is constrained to either sustain an employee discharge or reinstate with back pay, the use of the criminal standard is unfair to all the parties involved (grievant, employer, and labor union), since it essentially imposes the arbitrator's personal standard of industrial justice. It may be misleading to the labor arbitration parties to tell them that the arbitrator is finding guilt beyond a reasonable doubt and yet not basing that decision on all the protections and procedures required by criminal law, for example, the presumption of innocence. Articulating the quantum of proof necessary to sustain the discharge of an employee goes to the very nature of arbitration. It requires the arbitrator to decide whether arbitration is truly a creature of the parties (employer and labor union) or whether it is a public tribunal designed to ensure basic employee rights. 8 endnotes and 1 photograph (Author abstract modified)
Main Term(s): Arbitration; Burden of proof
Index Term(s): Labor relations
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