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AEBITRATORS' DECISIONS ON DISCIPLINE OF UNION OFFICIALS, l9h5-l951

By

ROGER LOUIS BCWLBY

A THESIS

Submitted to the School of Graduate Studies of Michigan
State College of Agriculture and Applied Science
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS

Department of Economics

1951

ACKNOWLEDGEMENTS

The author wishes to thank Dr. Charles C. Killingsuorth,
Professor of Economics at Michigan State College, who provided the
initial idea for this study, and furnished.many helpful suggestions
during the process of research, nriting, and revision.

It should also be mentioned that this work would not have been
possible without prohibitive labor, had it not been for the regular
publication by the Bureau of Public Affairs, Inc., et'Washington,
D.C., of the Lgbgg.Arbitration.Reports volumes. This is a fine

service to the public, and to labor economists especially.

288395

I.
II.
III.
IV.
V.
VI.

CONTENTS

Acknowledgments

Contents

A Statement of the Problem

The Causes for Discipline

Extenuating Circumstances

The Areas of Argeement in Arbitrators' Decisions
The Areas of Disagreement in Arbitrators' Decisions

A Summary of Findings and Some Policy Recommendations

iv

iv

23
36
A7
61

ARBITRATORS' DECISIONS ON DISCIPLINE OF UNION OFFICERS, 19A5-l951
Chapter I
A STATEEENT OF THE PROBLEM

The discipline of union officials represents a very import-
ant and delicate problem in labor-management relations, and
arbitration represents a promising avenue for the solution of
this problem.

The imposition of discipline, usually in the form of dis-
charge or lay-off, is perhaps the greatest single cause of
disputes under contract between company and union.1 The whole
area of discipline is particularly susceptible to dispute because
of the general ambiguity that characterizes collective bargaining
contracts on this topic. The typical contract provides that no
employee shall be subject to discipline except for "good and just
cause". This provision has become so commonplace as to be nearly

2
standard contract equipment. Even in a contract that contained no

such provision?, and under which management claimed the absolute and
unlimited power of discipline, arbitrator Blair ruled that no such
absolute right could exist consistent with the contract. The
assumption of such power by management, by his reasoning, would
subvert the entire contract, since all authority to determine

conditions of work would then pass to management, and the contract

provided for a sharing of this authority between union and company.

 

1 Clarence M. Updegraff and Whitley P. McCoy, Arbitration _o_f_ Labor
Dis utes, Commerce Clearing House, New York, l9h6, p. 131.

2 Maxwell Copelof, management-Union Arbitration, Harper'& Brothers,
New York, 1948, p. llO. »

3 Labor Arbitration.Reports The Bureau of Public Affairs, Washington,
vol. 6, p. 593, In re The Caterpillar Tractor Co. and the United

Farm Equipment and Metal Workers, (CIO), Jacob J. Blair, arbitrator.

 

Even in contracts without this wording, then, apparently employees

can be disciplined only for "good and just cause".

Contracts with more comprehensive and specific discipline
clauses are the exception, rather than the rule. In one such case1
a contract negotiated between company and union provided that no
discharge should take place except by the common consent of union
and company. In another unusual contract, the union was granted the
exclusive right to discipline union officials.2 Such provisions
seem.to be extremely uncommon at the present time, however, and
union officials are generally subject to the same disciplinary
process as other workers.

In the typical contract, then, much room.is left open for
interpretation of what constitutes "good and just cause". One
arbitrator has said3 that the phrase must be interpreted "in the
light of common experience". This is quite often a difficult prob-
lem to solve in the case of a rank and file worker, but in the case
of a union official, the problem becomes greatly magnified.

The discipline of union officials is a problem quite different
from the discipline-of a rank and file employee because of the
peculiar dual status of union officials. They are both employees of
the company and agents of the union. The difficulty of serving two

masters, attested to by the Bible, also presents itself in the more

 

1 Labor Arbitration Reports, 22. cit., vol. 12, p. 233, In re The
Progress Furniture Mfg. Co. and the United Furniture Workers of
America, (010), Michael I. Komaroff, arbitrator.

2 Lgbor Agbitration Re orts, pp. git., vol. 9, p. 819, In re The
Symington—Gould Corp. and the United Steelworkers of America, (010),
Dudley‘Whiting, chairman of the tripartite arbitration board.

3 Lgbor Arbitration Reports, 22. cit., vol. 6, p. 7, In re the
January &.Wood Co. and the Textile Workers' Union of America, (CIO),

Nelson Schwab, arbitrator.

modern context of industrial relations. .A union official must

serve two masters: he acts for the company, commonly in a productive
capacity, but he also acts for the union, and in such actions fre-
quently opposes the company.

The discipline of a union officer, with such dual status,
presents a problem quite different from the many problems found in
other discipline eases. ‘While acting in his capacity as a product-
ive employee, Justice requires that he be subject to the same degree
of discipline as other employees, but when acting in his capacity
as a union official, he should be immune from.disciplinary action by
the company. The drawing of a precise line between these two
different activities of the same person is frequently a difficult
proposition.

As one would be inclined to expect, cases involving discipline
of union officers are among the most bitterly and vigorously contest-

1
ed of all arbitration cases.

Aside from.the great bitterness and force with which such cases
are pursued by companies and unions, they are important because of
the greater implications that they have on the entire process of
collective bargaining. The law of the land prohibits the domination
of’labor unions by employers, and that principle is recognized by
virtually all students in the field of labor economics as a neces-
sary prerequisite to genuine collective bargaining. If employers ‘
are permitted to discipline union officials without restraint, they
can indeed dominate unions to a tremendous extent through this

mechanism. 0n the other hand, if union officers are not at all

 

l Copelof, gp.pgit., p. 123.

subject to discipline by their employers they may cause countless
interferences with production to further the union's goals, or
indeed their own personal goals. In such a situation, the union
might virtually operate the business enterprise to the exclusion of
the owners.

Reasonable men might well choose one of these extreme alterna-
tives of companybdominated unions or union dominated companies, with
resultant destruction of the collective bargaining process. For
those who are willing to accept one of these extreme doctrines, the
problem of discipline may be solved very simply. Dominant public
opinion in the United States, however, would probably reject both
of these choices and search for some sound, defensible middle ground
upon which both management and union could be protected in the
exercise of their essential rights, and.upon which collective bar-
gaining could be preserved. This latter approach is the one taken
in this paper. If true collective bargaining is to take place it is
manifestly impossible that union officers should be subject either
to absolute company discipline or to no company discipline at all.

The great fervor and vehemence with which these discipline cases
are contested, then, is most understandable in view of the great
implications that it has on the entire process of collective
bargaining.~ But they have firm.roots in the day-to-day process of
collective bargaining aside from these greater overall consider-
ations.

In the first place, unionists tend to regard the officers of
the union as a personification of the union, and action taken

against them as merely thinly disguised action taken against the

union itself. 'Whenever action of any type is taken against a union
officer, the union usuallyl charges that management has taken
disciplinary action against the individual because of his union
leadership, and would not have taken comparable action against a
rank and file_worker. An answer to the controversial question of
whether authority in the trade union movement comes from the top
down or from the bottom up2 seems to be indicated by the fact that
the rank and file workers stand so firmly behind their elected
officials throughout the grievance procedure, and that in fact,
discipline frequently3 resulted because workers chose to obey orders
of union officials rather than those of company officials. The
discipline of union officials would not be such a serious question
if the ordinary members of the union did not stand so firmly
behind them, respect them, and obey their orders to such a great
extent.

A second reason why unions consider the discipline of officers
so damaging lies in the psychological effect that it has on the
officers and potential officers. Subjecting union officials to

discipline might make it increasingly difficult for the union to

 

1 An analysis of all available discipline cases, involving 214 union
officials, published in Labor Arbitration Reports, shows that this
union claim found its way into the arbitrator's final decision in
14h cases. To this must be added an indeterminate number of cases
in which the arbitrator may have dismissed the claim summarily with-
out recognizing it in his final decision.

2 For a sympathetic presentation of each of these theories, see
Irving McCann,‘Why the Taft-Hartley Act?, The Committee for Constitu-
tional Government, New York, 1950, and Jack Barbash, Labor Unions IQ
Action, Harper & Bros., New York, l9h8. Both points of view are
quite widely prevalent.

3 In 96 of the cases tabulated, as in note 1, this page.

union itself. ‘Whenever action of any type is taken against a union
officer, the union usuallyl charges that management has taken
disciplinary action against the individual because of his union
leadership, and would not have taken comparable action against a
rank and file worker. An answer to the controversial question of
whether authority in the trade union movement comes from the top
down or from.the bottom up2 seems to be indicated by the fact that
the rank and file workers stand so firmly behind their elected
officials throughout the grievance procedure, and that in fact,
discipline frequently3 resulted because workers chose to obey orders
of union officials rather than those of company officials. The
discipline of union officials would not be such a serious question
if the ordinary members of the union did not stand so firmly
behind them, respect them, and obey their orders to such a great
extent.

A second reason why unions consider the discipline of officers
so damaging lies in the psychological effect that it has on the
officers and potential officers. Subjecting union officials to

discipline might make it increasingly difficult for the union to

 

1 An analysis of all available discipline cases, involving 21h union
officials, published in Labor Arbitration Reports, shows that this
union claim found its way into the arbitrator's final decision in
1AA cases. To this must be added an indeterminate number of cases
in which the arbitrator may have dismissed the claim summarily with-
out recognizing it in his final decision.

2 For a sympathetic presentation of each of these theories, see
Irving McCann, Why the Taft-Hartley Act?, The Committee for Constitu-
tional Government, New York, 1950, and Jack Barbash, Labor Unions lg
Action, Harper & Bros., New York, l9h8. Both points of view are
quite widely prevalent.

3 In 96 of the cases tabulated, as in note 1, this page.

 

obtain officers of high caliber. Certainly one would hesitate in
accepting a job if such job would endanger his entire economic
.future. This point of view was very effectively vocalized in the
dissenting member's Opinion in an arbitration decision made by a
tripartite board. It is another reason discipline cases involving
union officers are contested with such heat.

A third consideration, applicable to both companies and unions,
is that these disciplinary actions become a test of strength
between union and employer, and consequently their importance becomes
magnified out of all proportion to their intrinsic worth. Like a
prolonged strike over a fraction of a cent in wage rates,2 the
merits of the case become less and less important as the two
economic competitors vie for power, rather than for the fractional
cent, or for the firing or reinstatement of a shop steward.

From.the company's point of view, too, there exist several
reasons why discipline cases involving union officials are fought
with such enthusiasm. Management looks at the right to discharge
as an aspect of their right to run the business, to direct the fact-
ors of production so as to obtain the greatest level of output at
the lowest possible cost. Each succeeding authority that is taken
over by unions is looked upon as hastening the day when unions will

have appropriated all power, and the free enterprise system.will be

at an end.

 

1 Labor Arbitration Re orts, pp, git., vol. 5, p. 363, In re the
Carnegie-Illinois Steel Corp. and the United Steelworkers of Amer-
ica, Herbert Blumer, chairman of the arbitration board, Eugene
Maurice, labor representative, dissenting.

2 Arthur M. Ross, Trade Union Wage Polic , University of Califbrnis
Press, Berkeley, 1950, p. A7. Professor Ross gives several examples
of non-rational union behavior, of which this might be one,

although he does not mention it.

Restrictions on the authority to discipline union officers are
particularly unpalatable to employers who regard such restrictions
as the requirement that they be compelled to retain on their payroll
men who may become their active enemies, and who may be working
against them, rather than for them. To paraphrase an expression of
Samuel Gompers, management is prohibited from.rewarding their
friends and punishing their enemies, but is required to reward its
enemies as well as its friends.

Company officials are inclined toward a wholesome distrust of
union officers, even in situations where amicable labor-management
relations prevail. The possibility that union officers may permit
a thirst for power to dominate their actions, or that they will
habitually strive to aggrandize union power is a possibility that
companies are usually willing to entertain.

The fact that feelings run so high on each side, the fact that
the applicable contract provisions are so vague, the fact that the
regular grievance procedure, with its attendant negotiation and
compromise, has failed,’ the fact that the grbitrator cannot often

look to previous decisions for a precedent, and the fact that the

3
arbitrator cannot consistently decide issues by compromise, but

 

1 As an almost invariable rule, company-union contracts provide for
several levels of preliminary grievance procedure, with arbitration
as the last step, to be used only if agreement can be reached in no
other way.

2 Updegraff and McCoy, 22. 223., p. 129; Copelof, gp,‘gi§., p. 41.
These authors agree that precedent cannot be respected in labor arb-
itration cases as it is in legal cases for a variety of reasons, but
primarily because of the widely varying conditions from case to case.
3 Updegraff and McCoy, gp.‘git., p. 113. The authors substantiate
this viewpoint very convincingly. Their major contention is that
participants in disputes will lose confidence in any arbitrator from
whom they can expect only half-justice at best.

must often make decisions completely distasteful to one side all
combine to make this one of the most difficult problems facing
arbitrators.

In recent years, arbitration has become increasingly more pop-
ular in the settlement of industrial disputes as a substitute for
"industrial warfare".l Arbitrators have frequently been confronted
by the problem of disciplinary action against union officials. Their
decisions exhibit areas of uniformity and areas of conflict and
inconsistency.

In this paper an attempt will be made to discover these areas of
agreement and disagreement, and to finally arrive at a statement of
desirable policy that arbitrators ought to follow, given our
original goals of collective bargaining preservation.

While this is hardly a place for a discussion of the advantages
and shortcomings of arbitration as a method of settling labor dis-
putes, the particular attributes that make it potentially capable of
solving problems of this type should be mentioned briefly. Indus-
trial disputes are notoriously miscast in law courts. The advantages
of arbitration over courtroom litigation are several. In arbitrae
tion proceedings legal technicalities, most notably the laws of
evidence, may be waived at the discretion of the arbitrator. The
arbitrator may go into the field and examine areas of conflict
first hand. The experienced arbitrator will be familiar with shOp

lingo and terminology, and over a period of time may develop insight

 

l Capelof, gp.‘git., p. 2; Updegraff and McCoy, 33. 213., p. 9.

Both of these works expressed the belief that arbitration increased
greatly in popularity during the 1940's, quite largely due to the
influence of the'War Labor Board. Statistics to adequately prove or
disprove the contention are not available.

into the problems created by personalities, the conditions of
production peculiar to a particular industry or plant, and the
historical relationships of the bargaining parties.

Arbitration as a method of settling disputes concerning the
discipline of union officers also has several advantages over
direct negotiation between the parties involved. One of these
advantages has already been developed: that the strong feelings
of the disputing parties on the matter and the general nature of
the pertinent contract provisions make their resolution through
grievance procedure impossible.

At first glance, it might appear that more extended and inclu-
sive contract provisions might suffice to settle all discipline
problems without resort to arbitration. This would have the
definite advantage that it would make these issues the joint
determinations of employers and employees rather than the arbitrary
decisions of a third party. But while more inclusive contract
provisions might reduce the need for the services of arbitrators,
it is all but inconceivable that they could completely obviate the
need.4-As it will be more fully developed in later chapters, the
causes for discipline and the extenuating circumstances that may
make discipline unjust in some cases take a tremendous variety
of forms.” It would be all but impossible for negotiators to
anticipate all of these possible causes for discipline, and all
of the possible extenuating circumstances that might be submitted.
Even if omniscient negotiators could anticipate all of these
possible causes and circumstances, solution of disputes concerning

facts, which are characteristic of almost every arbitration case

10

involving discipline, would still be a sizeable task for a disinter-
ested third party to perform.

In some happy future day with more highly develOped contract
provisions and grievance procedures the determination of the true
facts disputed by conflicting evidence may be the sole function of
labor arbitrators. In the forseeable future they have important
functions of interpretation to perform that can be done more
effectively by them than by any other agency.

More uniform policy by arbitrators would be an advantage both
to company and to union. An employer, not knowing just how great
his area of unilateral decision is, may be forced to pay sizeable
sums in back pay to union officers that it has discharged without
"good and just cause". A union officer, not knowing how far he may
press union rights against management rights with impunity, may
either fail to exercise power commensurate with his responsibility
or subject his union to the demoralizing effects of the discharge of
a leader.

The compilation and publication of many of the most significant
decisions of labor arbitrators in a publication of the Bureau of
National Affairs, Labor Arbitration Reports, provides us with a
useful technique for looking at the problem of discipline, as
applied to union officers, and the steps that arbitrators have made
toward its solution.z In the preparation of this paper 108 decisions
of arbitrators concerning the discipline of labor union officers,
all that were published in these volumes, have been considered.

These decisions involve the discipline of 21A union officials, and

so may be considered as 214 individual discipline cases.

This should be a reasonably adequate frame of reference upon
which to analyze such things as the causes for discharge that
arbitrators have accepted or rejected, the extenuating circumstan-
ces that have caused them to modify or rescind disciplinary action
by companies, the areas of agreement in arbitrators' decisions, and
the conflicts and inconsistencies in their past decisions. A
careful evaluation of the decisions with the original goal of
collective bargaining preservation in mind should enable an answer
to our major question of what the decisions of arbitrators ought to
be in the interest of furthering industrial peace.

These 21h discipline cases were published in the five year
period from.l9h5 to 1950, and include a few decisions earlier than
l9h5 in time. Throughout this paper, they will be cited LA, with
volume number preceding, and the page number following. The
companies and unions involved, and the arbitrators making the
decisions will also be identified.”

Through a process of time and sifting, some tendency towards
uniformity in decisions has developed, and is developing. The
primary concern of this paper is the direction that this uniformity
is taking, and should take, if the process of collective bargaining
is to be advanced and the legitimate rights of union and company

are to be preserved.

Chapter II
The Causes for Discipline

The causes for discipline brought forth by companies take a
great variety of forms. They include violation of the contract,
violation of company rules established under the contract, and many
other causes of lesser importance.

The leading cause for discipline of union officers is work
stoppages, or “wildcat” strikes in violation of contract. These
charges were made in 107 individual cases, exactly half of the
total reported in M Arbitration Reports during this period.

The typical contract provision prohibits any strike or work stop-
age during the period of the contract, and provides some type of
grievance machinery, with arbitration as its terminal point, to
deal with any problems that m arise under the contract. Since
offended workers have a remedy under the contract for an excesses
of management, the work stoppage is considered highly culpable, and
heavy penalties are usually meted out to strikers. A few of the
contracts have unusually strong anti-strike provisions, specifying
the highest penalty of discharge for anyone instigating, abetting,
condoning, or participating in a work stoppage.1 The greater
number , however, merely outlaw strikes during the duration of the
contract, and levy no specific penalties for violations . Under
these contracts, arbitrators have assumed the dual task of determin-
ing if discipline is justified, and determining if the discipline

 

1 ILAZBS, In re the Pittsburgh Tube Co. and The United Steelworkers
of America, (010), Robert J. Wagner, arbitrator.

swan, In re John R. Evans & Co. and the International Fur and
leather Workers' Union of the United States and Canada, (CIO) ,
decision of the tripartite board of arbitration.

I.

I.

13

is preper in severity.

Absenteeism and tardiness are the next most important causes
for discipline of union officers, but are much less important
numerically than work stoppages. ll. of the discipline cases here
considered were for this cause. Some of the contracts provided the
limits of tolerable absenteeism, but more comenly these were
specified by conpany rules.

' Insubordination was the third most comon cause for discipline.
It was offered as a cause 13 times, principally in instances where
union officers countermended orders of company officials or super-
visory employees.

Violent or illegal conduct during a legal strike has also been
considered a cause for discipline. Examples of such conduct,
found in these decisions, are mass picketing and tipping over the
car of a company official who tried to cross a picket line. Ten of
the discipline cases here treated had such a cause.

Failure to follow correct grievance procedure is equally
popular as a cause for disciplinary action, securing ten times.
Union officials who skip steps provided by the contract or assume
excessive personal authority in processing grievances have been
held liable to discipline by arbitrators.

A surprisingly low number of disciplinary actions resulted
”on poor job performance, poor quality of work, or low productiv-
ity. In only eight of the 211. cases considered in this paper was
discipline for this cause.

A refusal to perform an assigned task was the cause for disci-

pline in eight cases. In most of these cases job transfers or

1A

demotions were involved, the offending union officers refusing to
accept such transfers or demotions.

Slowing down on the quantity of work turned out, or inducing
others to slow down, was another of the minor causes for discipline,
contributing 7 cases.

Leaving the job during working hours was another of the less
important causes of discipline, being offered as a cause in seven
cases. In all of these cases, the employee's position as a union
official was offered as a justification for such action.

The solicitation of union.members or the collection of union
dues on company time was the cause for discipline in five cases. The
contracts under which these cases were processed forbade such active
ity.

Transaction of union.business on company time was submitted as
the grounds for discipline upon three occasions. The rather inclur
sive and specific provisions for conduct of union business an
company time that characterise most modern collective bargaining
contracts are doubtlessly responsible for the scarcity of decisions
on this subject..

Three more discipline cases arose from.fighting in the plant.

In other cases of this general nature, physical violence against a
foreman, an attack against a.non-union worker in a union shop, and
an assault case tried in the civil courts, and occuring off company
property, have all occasioned disciplinary action by companies.

The use of profanity was a cause of discipline in two cases. In
both cases the union contended that the union officers had merely

used language common among men in the shop.

In the most lengthy of the discipline cases involving union
officials, the cause of the discipline was the activities of the
union.officer in the communist party.

The remainder of the causes for discipline are seemingly'nonp
recurrent in nature, and might be most conveniently grouped in a
miscellaneous classification. In one unusual case which might be
termed the discipline for least cause, three shop stewards were
discharged for no other apparent reason than that they presented a
grievance which.persona11y antagonized the company vicespresident.
Punching the time card of a fellow worker as two employees reported
for work together, playing a ”practical Joke" on a night watchman,
”lasiness”, formulating a conspiracy to defraud, loitering, and
washing hands on company time were the other miscellaneous causes
for discipline.

In the cases involving contract violations, the arbitrators in
general had two Jobs: to determine the truth or untruth of disputed
facts, and to interpret the contract, deciding Just Ihnt it means.
In the cases involving violation of company rules, the arbitrators
generally had three duties to perform: to determine whether the
rule was violated, to pass on the Justice and reasonableness of the
rule, and to decide if the rule was uniformly and fairly enforced.

Since these two causes, contract violations and infraction of
company rules of one sort or another, are behind most discipline
cases, it.may prove fruitful to examine than further.

Arbitrators have heard cases and upheld discipline for both
affirmative and negative actions by union officials. Union

officers have been disciplined for violations of contract or

‘

16

company rules; for encouraging others to violate rules or contract
provisions; and for failing to urge rank and file workers to obey
the contract and shop rules. An instance of the first case will
be here termed a discipline for "positive" cause, the third a
”negative" cause for discipline, and the second, which in.reality
lies somewhere between the other two, will be called a discipline
for ”provocative" cause.

If laboremanagemsnt relations are to be two-sided, and the
rights of both parties to determine conditions of work are to be
preserved, then management should be given the authority to use
all three of these as causes for discipline, but should be limited
in its power to use each of them. Quite clearly, a union official
can inflict financial and.material damage on his employer in any of
these three ways, by his positive actions, by his provocative
actions, or by his "sins of omission“ in not acting, when it is his
duty as an officer of the union to act. Equally clearly, an anti-
union management can supress or control a union by abusing its
disciplinary powers in any of these three fields. Sensible policy
requires that management have authority to discipline in all three
of these areas, and that its power to discipline be limited in all
three of these areas. Discipline for any of these causes should
not be looked at as vengeance or as "an eye for an eye“, but as a
legitimate exercise of.management's authority to direct the working
force in such a way as to minumise the inputs and.maximise the
outputs.

'While all three of these should be recognised as legitimate and
valid causes for discipline, the differences between them.are consid-

erable, and ought to be understood. In the case of "positive”

(I

 

:9

 

 

l7

discipline, the duty of the company, or the arbitrator, is
comparatively simple. A determination of whether an action is
illegal under the contract, a determination of whether the

accused individual has actually performed this act, and an evalua-
tion of extenuating circumstances that might Justify the act will
suffice for a decision. In the case of a disciplinary action for
”provocative" cause, the same tasks must be performed, but they
will be fraught with much more difficulty. The tone of voice of

a speaker, the exact wording of a casual statement, the facial
expression at the time of speaking, or a multitude of other intan-
gible factors play a great part, and by the nature of the case, must
carry a great deal of weight. The determination of a case based on
a "negative“ cause is yet a more difficult task. All of the
difficulties inherent in the other two types of decisions are
present here, and in addition the extraordinarily difficult ques-
tions of what is ”reasonable effort", what is "good intent”, and

a complex array of other problems, so individualised to the cases
that it is difficult to catalog them.

Further problems arise in connection with the causes of
discipline. In the affirmative cases, the union official may be
treated substantially the same as a rank and file employee. In the
provocative cases, it would seem logical to make some differenti-
ation between officers and ordinary union members. In the negative
cases, the disciplinary action is peculiar to union officers.

If management is to be adequately protected in its right to
direct the working force, then, it would appear that union officials
must be subject to a higher order 'of discipline than rank and file

 

 

18

employees, since the acceptable causes for discipline must be

more numerous for them than for others. Attendant with this higher
order of discipline is the problem, previously mentioned} of
attracting a high caliber of men to union office who must be sub-
jected to this higher level of discipline.

Examples of the three types of discipline should help to make
more clear the distinction drawn between them here.

Discipline for positive cause may be illustrated by a case2 in
which a union president was discharged for a criminal assault that
had taken place a few feet outside the company gates. Arbitrator
Hamton's task was to determine if this was a justifiable cause for
discharge, since the incident had not occured during working hours,
or on company property, and the union president had already paid a
fine for his misconduct in the civil courts. The arbitrator decided
that these other factors made the discharge unjustified, and
ordered the president reinstated with back pay. Here discharge was
for a positive action, claimed by the company to justify discharge,
and the arbitrator Ind only to decide, on the merits of the case, if
the company' s action was justified. The discharged employee's status
as a union official did not enter into the decision.

In other discipline cases for positive cause, the offender's
position as an officer of the union may influence the final determi-

nation of the case. The problem of differential treatment of union

 

1 See p. 6, above.
2 71.15%, In re the Caterpillar Tractor Co. and the United Farm
Equipment and Metal Workers, (CIO) , Charles G. Hampton, arbitrator.

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employees, since the acceptable causes for discipline must be

more numerous for them than for others. Attendant with this higher
order of discipline is the problem, previously mentioned,1 of
attracting a high caliber of men to union office who must be sub-
jected to this higher level of discipline.

Examples of the three types of discipline should help to make
more clear the distinction drawn between them here.

Discipline for positive cause may be illustrated by a case2 in
which a union president was discharged for a criminal assault that
had taken place a few feet outside the company gates. Arbitrator
hampton's task was to determine if this was a justifiable cause for
discharge, since the incident had not occured during working hours,
or on company property, and the union president had already paid a
fine for his misconduct in the civil courts. The arbitrator decided
that these other factors made the discharge unjustified, and
ordered the president reinstated with back pay. Here discharge was
for a positive action, claimed by the company to justify discharge,
and the arbitrator had only to decide, on the merits of the case, if
the company's action was justified. The discharged employee's status
as a union official did not enter into the decision.

In other discipline cases for positive cause, the offender's
position as an officer of the union may influence the final determi-

nation of the case. The problem of differential treatment of union

 

1 80. De 6, abone
2 7L155k, In re the Caterpillar Tractor Co. and the United Farm
Equipment and Metal Workers, (CIO) , Charles G. Hampton, arbitrator.

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19

officers, with which this paper is most concerned, becomes involved
in cases of this type. In a case in point1 a union president was
discharged for washing his hands on company time in violation of a
plant rule. The company argued that this offense warranted the
discharge penalty since it was more serious than the same offense
coming from an ordinary employee, as the union president sets an
example for others to follow. Arbitrator Hampton decided that the
president's action was culpable, but that making an example of him
to the extent of discharge was unjustified and unnecessary, and
ordered the penalty reduced to a disciplinary lay-off. In the
positive discipline cases the employee's status as a union officer
may be not considered at all, a minor element of the case, or the
principle consideration, as it was in this case.

An extreme example of a provocative cause for discipline is
found in a decision2 by arbitrator Lesser involving two union
comitteemen discharged for instigating a slowdown. The comparw
submitted evidence showing that the two union officers had threat-
ened members with expulsion from the union if they did not decrease
their production. Here the union officials were not more guilty
than others as far as their participation in the slowdown was
concerned, but were discharged for provocative acts. The arbitrator

upheld the company' s action and ruled that the discharges should

stand. In other cases coercive action by union officers has been

 

1 W3: In re the Metal Auto Parts Co. and the United Automobile,
Aircraft, and Agricultural Implement Workers of America, (010) ,
cm]... Ge H‘mpton, ”bitr‘tvore

2 2LA615, In re 1... O. Keven a Brother, Inc. and the United Associ-
ation of Journeyman Plumbers and Steamfitters, (AF of 1.), Arthur
Lesser, arbitrator. ,

I.

 

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20

more subtle, but in all of them, the status of the offender as an
officer 'of the union has been of paramount importance.

An example of discipline for a negative cause may be found in
a easel involving eight men discharged for their connection with
an illegal strike. Four of the offenders were union officers;
four were not. Arbitrator McCoy in his decision ruled that the
four non-officers should be reinstated with back pay, since evidence
could not be produced to prove them more guilty than others who
were not disciplined. In the case of the union officers, however,
the company's disciplinary action was permitted to stand. No more
evidence was introduced to substantiate the discharge of the union
officers than was submitted for the rank and file employees. Since
they had failed to properly discharge their duties as union
officials, and persuade, or attempt to persuade the men to continue
at work, the arbitrator decided that the discipline of the company
was justified in their case. One of'the officers with special
extenuating circumstances was reinstated without back pay, and the
other three were permanently discharged. In their affirmative
actions, the union officials were not more guilty than the rank and
file workers who were reinstated with back pay, and there was no
charge that they had provoked or persuaded other workers to perform
illegal actions. They were discharged for actions that they did
not perform. It is difficult to imagine a union member, not an

officer, being subject to discipline of this type.

 

1 1.1.1714» In re the Stockham Pipe Fittings Co. and the United
Steelworkers of America, (CID) , Whitley P. McCoy, arbitrator.

20

more subtle, but in all of them, the status of the offender as an
officer ’of the union has been of paramount importance.

An example of discipline for a negative cause may be found in
a easel involving eight men discharged for their connection with
an illegal strike. Four of the offenders were union officers;
four were not. Arbitrator McCoy in his decision ruled that the
four non-officers should be reinstated with back pay, since evidence
could not be produced to prove them more guilty than others who
were not disciplined. In the case of the union officers, however,
the company's disciplinary action was permitted to stand. No more
evidence was introduced to substantiate the discharge of the union
officers than was submitted for the rank and file employees. Since
they had failed to properly discharge their duties as union
officials, and persuade, or attempt to persuade the men to continue
at work, the arbitrator decided that the discipline of the company
was justified in their case. One of'the officers with special
extenuating circumstances was reinstated without back pq, and the
other three were permanently discharged. In their affirmative
actions, the union officials were not more guilty than the rank and
file workers who were reinstated with back pay, and there was no
charge that they had provoked or persuaded other workers to perform
illegal actions. They were discharged for actions that they did
not perform. It is difficult to imagine a union member, not an
officer, being subject to discipline of this type.

 

l ALF/1.1., In re the Stockham Pipe Fittings Co. and the United
Steelworkers of America, (010), Whitley P. McCoy, arbitrator.

i...

~J

An analysis of the 21k instances of discipline in the 108
decisions of arbitrators included in the scope of this study shows
that discipline was for positive cause in 111 cases, for provoc-
ative cause in A7 cases, and for negative cause in 58 cases.1 The
division of cases into these three classes is sometimes arbitrary
and difficult, and little mathematical significance can be given
to this data, but it seems to indicate that all three causes for
discipline are important ones.

Other classifications of the causes for disciplinary action
would.be possible. The system.just outlined 'splits hairs" in a
good many cases, it is abstract, and it makes scholarly distinc-
tions that would.probably not be recognised by unions and companies
in the day to day process of collective bargaining and grievance
presentation. It is, however, a sensible classification, and the
one that seems most helpful in solving the problem.of discipline
for union officials, for it best takes into consideration those
areas in which differentiation should be made between union
officials and rank and file workers. This differentiation may take
a.number of different forms,‘but a differentiation in the accept-
able causes for discipline is the most basic, since all discipline
must, by contract provision or contract interpretation, be based
on “good and just cause".

A look at such contract provisions might convince one that when

he had considered the causes for discipline the entire subject was

 

l The total of separate items is more than 21k, due to the fact
that in two cases companies submitted two separate causes for
discipline, apparently giving.both of them.equal weight.

kn

An analysis of the 21h instances of discipline in the 108
decisions of arbitrators included in the scope of this study shows
that discipline was for positive cause in 111 cases, for provoc-
ative cause in 57 cases, and for negative cause in 58 cases.1 The
division of cases into these three classes is sometimes arbitrary
and difficult, and little mathematical significance can be given
to this data, but it seems to indicate that all three causes for
discipline are important ones.

Other classifications of the causes for disciplinary action
would be possible. The system.just outlined 'aplits hairs" in a
good.many cases, it is abstract, and it makes scholarly distinc-
tions that would probably not be recognised by unions and companies
in the day to day process of collective bargaining and grievance
presentation. It is, however, a sensible classification, and the
one that seems most helpful in solving the problem.of discipline
for union officials, for it best takes into consideration those
areas in which differentiation should be made between union
officials and rank and file workers. This differentiation may take
a nuaber of different forms, but a differentiation in the accept-
able causes for discipline is the most basic, since all discipline
must, by contract provision or contract interpretation, be based
on "good and just cause".

A look at such contract provisions might convince one that when

he had considered the causes for discipline the entire subject was

 

1 The total of separate items is more than 21k, due to the fact
that in two cases companies submitted two separate causes for
discipline, apparently giving.both of them.equal weight.

 

.-~-

22

exhausted, since an interpretation of the phrase "good and just
cause" would settle aw discipline case. In actual practice,
however, arbitrators have frequently ruled that discipline should
not be taken even when "good and just cause" exists. These
extenuating circumstances which indicate that discipline should

not be taken will be discussed in the next chapter. The study of
these two basic elements of all discipline cases will complete a
preliminary survey of the field of discipline of union officers, and
lay the ground for the drawing of conclusions on policy.

Chapter III
Extenuating Circumstances

The variety of extenuating circumstances that have been
presented by unions as reasons why disciplinary action should be
completely withdrawn, or reduced in severity, is even greater than
the multiplicity of causes for discipline brought forth by
companies.

In one case1 a union steward was discharged for a prolonged
absence from his post as an elevator operator, and the union submit-
ted the thesis that since the incident occurred on V-E day, and
considerable excitement prevailed among crowds in the street, the
steward's natural curiosity impelled him to leave his post tempo-
rarily, and for this reason the discharge penalty was too severe.
Arbitrator Scarborough rejected this interesting contention, and
upheld the company's action.

A cataloging of all the circumstances that might justify the
reversal or lessening of disciplinary action would have consider-
able human interest, but would shed little light on the problem of
disciplining union officials while maintaining collective bargain-
ing. Two of these circumstances are so comon, however, that they
deserve special mention. he would be expected, long years of
service and a good work record of high productivity have been quite
successful in favorably influencing arbitrators. The charge of

discrimination, that others equally guilty were not punished, is

 

1 114551., In re the Hoboken Land & Improvement Co. and the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, (AF of L), Harland J. Scarborough, arbitrator.

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probably the most comon of all extenuating circumstances offered
as a reason discipline should not take place.

These and all the other extenuating circumstances of less
frequent occurance have sometimes influenced arbitrators to complete-
1y negate the company's action, and have often caused arbitrators to
substitute a lighter penalty for the one imposed by the company.

The multitude of extenuating circumstances offered in the 211.
arbitration cases considered here may be divided into two groups,
and the particular circumstances most relevant to this stw
examined at some length. We shall define I'ordinary" circumstances
as those extenuating circumstances that are equally applicable to
union officials and to rank and file employees. He will consider
extenuating circumstances which, by their nature, are applicable
only to union officials, and not to rank and file workers, as
”extraordinary” ciromstances.

Examples of ordinary and extraordinary circumstances that have
been accepted by arbitrators to lighten or reverse company action in
discipline should help to make their meaning more clear.

In one casel a union steward was discharged for the violation
of a plant rule against loitering. The union contended that the
rule had never been posted by the company, or strictly enforced by
them in the past, and that the discharge was therefore unjustified.
There was no denial that the steward had really been loitering.
Arbitrator Healy accepted the union' s contention as an extenuating

 

l 6LAA30, In re the Joy Manufacturing Co. and the United Steelworkers
of America, (610), James J. Healy, arbitrator.

25

circumstance, and ordered the steward reinstated with full back pay
for all earnings lost due to the discharge. These extenuating
circumstances would clearly have made the discharge unjustified
even if the steward had been an ordinary employee. It could there-
fore be termed an ordinary one.

An extenuating circumstance of the extraordinary type may be
found in another casel, in which a union vice-president was dischar-
ged for ordering men not to report for work on a Saturday, in
contravention of management directives. Arbitrator Tucker accepted
as an extenuating circumstance the fact that the dischargee was an
officer of a minority union. The work session, which was irregular
in nature, had been jointly negotiated by the comparw and the
majority union, but the officers of the minority union had not bed
consulted. The fact that he , as a union officer, was so slighted
gave rise to a feeling of great resentment in him, and provided an
extenuating circumstance. The arbitrator gave this as his principal
reason for ordering the lightening of discipline from discharge to
a disciplinary lay-off.

Union officials because of the nature of their position are both
subject to a higher level of discipline, and exempt from discipline
for a greater number of extenuating circumstances, since only they
may make use of extraordinary extenuating circumstances, and only
they may be disciplined for negative cause.

A more careful investigation of these extenuating circumstances

 

1 31.11.26, In re the Welin, Davit, & Boat Corp. and the International
Association of Machinists, (Independent), William L. Tucker,
arbitrator.

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of an extraordinary nature shows that several of them are of colon
recurrence, and are quite basic to the question of differential
treatment of union officers in discipline cases.

The most common of these is the frequentl charge that the
comaw's stated cause is not really the basic one, and that the
real motive for discipline is the fact that the union activities of
the accused are obnoxious to the employer. Arbitrators have
accepted this contention as a valid extenuating circumstance only
in a few cases, where the union could prove that the company had a
long history of anti-union action and that the discipline was
really an attempt to break the union, and not to punish a worker
for an individual wrong. This plea has generally not been accepted
as an extenuating circumstance standing alone unless the union
could supplement it by disproving the compary' s positive contention
as to the grounds for discipline, and if the union could do this,
the claim of prejudice against union officers was really not neces-
sary, for the discipline would in all probability have been rescind-
ed in an event.

in extreme case2 ef this type occured when all eight officers
of a local union were discharged for the part they played in an
illegal strike. The union contended that the comparw's discharges
would have the effect of destroying the union, and so should not be

permitted. The majority of the tripartite board of arbitration

 

l Occuring 11.1. times, see note 1, page 6.

2 5LA363, In re the Game ie-Illinois Steel Corp. and the United
Steelworkers of America, fiCIO) , decision of the tripartite board,
Herbert Blumer, chairman; Eugene Maurice, union-appointed arbitrator;
and Walter Kelly, employer-appointed arbitrator.

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26

of an extraordinary nature shows that several of them are of coma
recurrence, and are quite basic to the question of differential
treatment of union officers in discipline cases.

The most co-son of these is the frequent1 charge that the
comaw's stated cause is not really the basic one, and that the
real motive for discipline is the fact that the union activities of
the accused are obnoxious to the employer. Arbitrators have
accepted this contention as a valid extenuating circumstance only
in a few cases , where the union could prove that the company had a
long history of anti-union action and that the discipline was
really an attempt to break the union, and not to punish a worker
for an individual wrong. This plea has generally not been accepted
as an extenuating circumstance standing alone unless the union
could supplement it by disproving the compam' a positive contention
as to the grounds for discipline, and if the union could do this,
the claim of prejudice against union officers was really not neces-
sary, for the discipline would in all probability have been rescind-
ed in an event.

An extreme case2 of this type occm‘ed when all eight officers
of a local union were discharged for the part they played in an
illegal strike. The union contended that the company's discharges
would have the effect of destroying the union, and so should not be

permitted. The majority of the tripartite board of arbitration

 

l Occuring 11.1. times, see note 1, page 6.

2 5LA363, In re the Carne ie-Illinois Steel Corp. and the United
Steelworkers of America, €010), decision of the tripartite board,
Herbert Blumer, chairman; Eugene Maurice, union-appointed arbitrator;
and Walter Kelly, employer-appointed arbitrator.

...-.

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27

which heard the case dismissed this contention and upheld the
action of the company. In a dissent from the opinion of the major-
ity, arbitrator Maurice strongly defended this contention of the
union which the majority of the board had dismissed rather lightly.

Another extenuating circumstance of extraordinary character
frequently claimed by unions is the condition of “democratic
process". Using this doctrine, unions often contend that their
officials should not be subject to discipline for the leadership of
illegal activities when such activities are the result of a demo-
cratic vote of the membership, since the leaders of the union are
compelled to act in accordance with the wishes of the majority.
This argument has received widely varying treatment at the hands
of arbitrators.

In one case1 a union president and vice-president were
discharged for instructing union members to present grievances from
the hours of 9:00 to 9:30 one morning instead of working. Arbitrap
tor Updegraff found that such action was in truth not mere
grievance presentation, but a work stoppage, illegal under the
contract. However, in his decision he ordered that since the work
stoppage had been the result of a democratic process, in which the
entire membership of the union had participated, the discharge
penalty was too severe, and should be reduced to disciplinary lu-
off for the two union officers. In this case, the vote of the
union seemingly lightened the burden of responsibility that the

officers were required to carry.

 

l 3MB?!” In re Ampco Metal, Inc. , and the Employee's Mutual Benefit
Association, (Independmt), Clarence ll. Updegraff, arbitrator.

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28

1
In another case involving the application of the doctrine of

democratic process, a union president was discharged for his lead-
ership in an illegal strike. The union presented a number of
extenuating circumstances, one of which was that the stoppage was
the result of a democratic process. Arbitrator Scheiber, in his
decision, said "...a decision to do a wrongful act, though demo-
cratically arrived at, gains no sanctity, but still leaves the deer
responsible." Other extenuating circumstances were accepted by the
arbitrator, however, and the president's reinstatement with back
pay was ordered in the decision. In this case the arbitrator
seemed to completely reject the doctrine of democratic process.

Another extenuating circumstance comonly pleaded by unions is
the condition of spontaneity. Using this argument, unions
frequently argue that illegal work stoppages or actions of workers
are the result of spontaneous action by the workers, and net leader-
ship by officers. Union officials, by this doctrine, are net
accountable for these actions of employees that are of a spontane-
ous nature, since the element of leadership is absent. This claim
is quite fnquently made in cases in which the union official does
not directly participate in the illegal action, and has been used
more rarely in some cases in which the union officials actually
participated in the illegal act, but denied leadership of such
action, notwithstanding their participation.

This line of argument is somewhat similar to the doctrine of

democratic process, but is much more difficult to prove or disprove

 

l 7W, In re the Nathan Mfg. Co. and the International Association
of Machinists, (Independent), Isrel Ben Scheiber, arbitrator.

’0

29

by objective evidence. If we contend that a strike was the result
of a democratic process, we can frequently prove or disprove it by
examining the minutes of a union meeting or hearing verbal evidence
that a democratic decision took place. But if we. argue that a
strike resulted from the spontaneous action of workers, we will find
it quite difficult to prove or disprove because of the difficulty
of determining the psychological motivation of the strikers, or the
precise location of leadership in the strike.

Like the doctrine of democratic process, the argument of
spontaneous origin has received varied treatment at the hands of
arbitrators. ‘

In a easel in which four union officers were discharged because
they were seen on an illegal picket line, where violence took place,
arbitrator Lehocsky said “The fact that an individual is an 'offioer
of the union'does not mean that he is the moving spirit...". His
finding was that the pickets were on the line due to their own,
spontaneous free will decision, and that the company could not
discharge the union officers unless they could prove specific, indi-
vidual acts of violence in which they had partakem.

In another very similar decision2 seven union stewards were
given disciplinary lay-offs for their presence in a picket line
during an illegal strike. Arbitrator Wolf felt that their mere

presence on the picket line constituted leadership, and denied the

 

l llLAle, In re the Univis Lens Go. and L. W. Wernstaff et. al.,
members of the United Electrical, Radio, and Machine Workers,
(Independent), Paul N. Lehoczky, arbitrator.

2 3LA285 , In re the Mueller Brass Co. and the United Automobile,
Aircraft, and Agricultural Implement Workers of America, (CID) ,
David A. Wolf, arbitrator.

(o

o;

p.

30

contention of the union that the picketing was spontaneous, uphold-
ing the comeny's disciplinary action.

The doctrine of spontaneous causality has usually been accepted
as a valid one , but has infrequently resulted in the nullification
of discipline because it is so difficult to prove.

The mere fact of union official status does not seem to have
been accepted as an extenuating circumstance. In a few cases arbi-
traters have implied that union officials, because of their posi-
tien, deserved more consideration than rank and file workers, but
they have not used this argument to negate company action in
discipline cases.

In a case of this typel arbitrator Scheiber stated that '...
discharge of a steward should be only for very grave cause”, and
said that l'additienal consideration" was due in the case of a union
official. The meaning of these words is not very clear, however,
since in this particular case Mr. Scheiber upheld the discharge of a
steward for failing to follow correct grievance procedure in spite
of the "additional consideration“ due him.

There seems to be no clear out case among the 211. cases in which
a union official was given preferential treatment solely because of I
the office he held, with no other extenuating circumstances present,
although arbitrator Scheiber ' s statements about “additional consid-
eration” and “very grave cause" are found in a few other decisions.
The much more common attitude of arbitrators is that union officials
owe a higher responsibility to the contract than rank and file

 

l. M, In re the Nathan Mfg. Co. and the International Association
of Machinists, (Independent), Isrel Ben Scheiber, arbitrator.

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workers, and so “union office does not imply that one can act with
impunity, but rather confers added responsibility".l

Discriminatory treatment may be either an ordinary or an extraor-
dinary extenuating circumstance. In discipline cases where the
wrongdoer can show that others equally guilty were not punished his
discipline is usually not upheld by the arbitrator, even though the
cause of discipline may be just.

When disciplined union officials can show that other union
officers equally guilty were not punished, they are usually exemt
from discipline. In a case in pointz, two union stewards were
discharged for leading a strike in violation of contract . Arbitra-
tor Whiting held that the stewards were guilty, but rescinded the
discharge penalty because the local president, who was equally
guilty, was unpunished. One steward was reinstated with half back
pay and the other with none. In no case where the offending union
officer sould show discriminatory treatment of this type was compam‘
action upheld by arbitrators.

When the question is one of discriminatory treatment between
union officers and non-officers, the issue becomes much less clear.
Arbitrators have sometimes held that disciplinary action taken
against union officials when rank and file workers equally guilty
were not punished was discriminatory, and consequently void. Other
arbitrators have held that discipline of this type was permissable.

 

l 3LA285, In re the Mueller Brass Co. and the United Automobile ,
Aircraft, and Agricultural Inlement Workers of America, (CID) ,
David A. Wolf, arbitrator.

2 114506, In re the Preuhauf Trailer Co. and the United Automobile,
Aircraft, and Agricultural Implement Workers of America, (010) ,
Dudley Whiting, arbitrator.

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31

workers, and so "union office does not imply that one can act with
impunity, but rather confers added responsibility".1

Discriminatory treatment may be either an ordinary or an extraor-
dinary extenuating circumstance. In discipline cases where the
wrongdeer can show that others equally guilty were not punished his
discipline is usually not upheld by the arbitrator, even though the
cause of discipline may be just.

when disciplined union officials can show that other union
officers equally guilty were not punished, they are usually exemt
from discipline. In a case in pointz, two union stewards were
discharged for leading a strike in violation of contract. Arbitra-
tor Whiting held that the stewards were guilty, but rescinded the
discharge penalty because the local president, who was equally
guilty, was unpunished. One steward was reinstated with half back
pay and the other with none. In no case where the offending union
officer sould shew discriminatory treatment of this type was cempaw
action upheld by arbitrators.

When the question is one of discriminatory treatment between
union officers and non-officers, the issue becomes much less clear.
Arbitrators have sometimes held that disciplinary action taken
against union officials when rank and file workers equally guilty
were not punished was discriminatory, and consequently void. Other

arbitrators have held that discipline of this type was permissable.

 

l 3LA285, In re the Mueller Brass Go. and the United Automobile,
Aircraft, and Agricultural Inlement Workers of America, (OIO) ,
David A. Wolf, arbitrator.

2 114506, In re the Preuhauf Trailer Co. and the United Automobile,
Aircraft, and Agricultural Implement Workers of America, (CID) ,
Dudley Whiting, arbitrator.

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1
In a case involving a strike in violation of contract five

union officials were discharged for their participation, although
the company produced no evidence that they had participated to a
greater extent than the many rank and file employees who received
no punishment. Arbitrator Wolff, in his decision said that the
company's action in singling out union officials for discharge was
discriminatory: "I feel it would be most unfair for them (the union
officials) to receive the maxim punishment possible in cases of
this kind while the other employees escaped all responsibility“.
Primarily for this reason, the arbitrator ordered that the union
officers should be reinstated to employment, but without back pay.

In another case2 involving a work stoppage seven union stewards
were given disciplinary lq-offs of one week for participation in a
picket line. Although many other employees took part equally and
were given no discipline at all , arbitrator Wolf upheld the
company's action. He ruled that the compaw's action was not
discriminatory, since the higher obligation owed to the contract by
the union officials justified this differential treatment.

Another frequently recurring instance in which union office is
pleaded as an extenuating circumstance comes in the charge of absen-
teeism. Arbitrators have usually taken a sympathetic attitude
toward union officers charged with absenteeism when the officers can

prove that their absences were necessitated by union business.

 

1 7LA180, In re the' Simplicity Pattern Co. and the United Office and
Professional Workers of America, (010) , Sidney A. Wolff, arbitrator.
2 314285, In re the Mueller Brass Co. and the United Automobile,
Aircraft, and Agricultural Implement Workers of America, (010),
David A. Wolf, arbitrator.

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In a particularly interesting case of this type, a high union

official, who was a lobbyist in the state legislature and the vice-
president of the state 010 council, was discharged by the company
for excessive and unauthorised absences. Although the company
submitted records showing an attendance record that could hardly be
characterised as awthing but miserable, the tripartite board that
heard the case decided that the employee's union activities justi-
fied his poor record of attendance, and ordered that he be reinstat-
ed with full back pay for all his lost earnings.

In only a very few cases has company disciplinary action for
absenteeism been upheld against union officials when the union
officials could satisfactorily prove that their absence was neces-
sitated by union business. In these cases specific contract provis-
ions limiting the amount of time to be spent on union activities
were incorporated into the contract.

In a few cases where discipline was for poor work performance or
low productivity the fact that the employee was a union official has
been offered as an excuse on the grounds that the union activities
of the offender justify poorer performance records, since they may
on occasions interfere with production. We arbitrator in any of
these decisions recognized this as a valid excuse.

In yet another less frequently occuring type of case union
officers have claimed greater immity from discipline than rank and
file employees. This lies in their right to interpret the contract,

 

l 9LA905, In re the Game ie-lllineis Steel Corp. and the United
Steelworkers of America, (CID) , decision of the tripartite beard,
Ralph Seward, chairman; Eugene Maurice, union-appointed arbitrator;
and Walter Kelly, employer-appointed arbitrator.

.7 .7

31.

a right that is always denied to other employees. When employees
disobey orders of supervisors they are usually held liable to disci-
pline, even though the orders of the supervisors are in violation
of the contract. The logic behind this type of decision is that

if they believe the employer's actions illegal, the contract
provides them with a grievance procedure, and they should obey the
supervisor's order and file a grievance rather than attempting to
interpret the contract themselves.

In one very important case1 a union steward was discharged for
failing to obey a direct order of a supervisor to leave the compam'
employment office, where he was assisting a union member in process-
ing a grievance. Arbitrator Seward ruled that the comparw did have
a legal right under the contract to order him from the office.
Despite this fact his reinstatement with back pay was ordered,
because the steward's interpretation of the contract, that the
compaw had no such right, although not the same as the arbitrator's
was nevertheless a reasonable one, and because the steward had acted
with good intent.

In these last few cited examples, union officials have claimed,
and have sometimes been granted immunity from discipline where rank
and file workers would be subject to discipline for the same
offense.

Union officials have frequently availed themselves of other
extenuating circumstances. They have charged that the company was
"out to get them" and supplied them with faulty materials and

 

1 W925, In re the International Harvester Co. and the United Farm
Equpment and Metal Workers, (Independent), Ralph Seward, arbitrator.

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35

a right that is always denied to other employees. When employees
disobey orders of supervisors they are usually held liable to disci-
pline, even though the orders of the supervisors are in violation
of the contract. The logic behind this type of decision is that

if they believe the employer's actions illegal, the contract
provides them with a grievance procedure, and they should obey the
supervisor's order and file a grievance rather than attempting to
interpret the contract themselves.

In one very important case:l a union steward was discharged for
failing to obey a direct order of a supervisor to leave the company
employment office, where he was assisting a union member in process-
ing a grievance. Arbitrator Seward ruled that the company did have
a legal right under the contract to order him from the office.
Despite this fact his reinstatement with back pay was ordered,
because the stnard's interpretation of the contract, that the
compaw had no such right, although not the same as the arbitrator's
was nevertheless a reasonable one, and because the steward had acted
with good intent.

In these last few cited examples, union officials have claimed,
and have sometimes been granted iamunity from discipline where rank
and file workers would be subject to discipline for the same
offense.

Union officials have frequently availed themselves of other
extenuating circumstances. They have charged that the company was
"out to get them" and supplied them with faulty materials and

 

l lhIA925, In re the International Harvester Co. and the United Farm
Equpment and Metal Workers, (Independent), Ralph Seward, arbitrator.

 

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31.

a right that is always denied to other employees. When employees
disobey orders of supervisors they are usually held liable to disci-
pline, even though the orders of the supervisors are in violation
of the contract. The logic behind this type of decision is that

if they believe the employer's actions illegal, the contract
provides them with a grievance procedure, and they should obey the
supervisor's order and file a grievance rather than attempting to
interpret the contract themselves.

In one very important case1 a union steward was discharged for
failing to obey a direct order of a supervisor to leave the company
employment office, where he was assisting a union member in process-
ing a grievance. Arbitrator Seward ruled that the company did have
a legal right under the contract to order him from the office.
Despite this fact his reinstatement with back pay was ordered,
because the stevmrd's interpretation of the contract, that the
cempaw had no such right, although not the same as the arbitrator's
was nevertheless a reasonable one, and because the steward had acted
with good intent.

In these last few cited examples, union officials have claimed,
and have sometimes been granted immunity from discipline where rank
and file workers would be subject to discipline for the same
offense.

Union officials have frequently availed themselves of other
extenuating circumstances. They have charged that the company was
I'out to get them“ and supplied them with faulty materials and

 

l lALA925, In re the International Harvester Co. and the United Farm
Equipment and Metal Workers, (Independent), Ralph Seward, arbitrator.

‘tfarllw

II»?-

31.

a right that is always denied to other employees. When employees
disobey orders of supervisors they are usually held liable to disci-
pline, even though the orders of the supervisors are in violation
of the contract. II‘he logic behind this type of decision is that

if they believe the employer's actions illegal, the contract
provides then with a grievance procedure, and they should obey the
supervisor's order and file a grievance rather than attempting to
interpret the contract themselves.

In one very important case1 a union steward was discharged for
failing to obey a direct order of a supervisor to leave the company
employment office, where he was assisting a union member in process-
ing a grievance. Arbitrator Seward ruled that the company did have
a legal right under the contract to order him from the office.
Despite this fact his reinstatement with back pay was ordered,
because the steward's interpretation of the contract, that the
compaw had no such right, although not the same as the arbitrator's
was nevertheless a reasonable one, and because the steward had acted
with good intent.

In these last few cited examples, union officials have claimed,
and have sometimes been granted immunity from discipline where rank
and file workers would be subject to discipline for the same
offense.

Union officials have frequently availed themselves of other
extenuating circumstances. They have charged that the company was
"out to get them“ and supplied them with faulty materials and

 

1 W925, In re the International Harvester Co. and the United Farm
Equp-ent and Ketal Workers, (Independent), Ralph Seward, arbitrator.

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35

l
insufficient helpers. They have charged that the company violated

the contract first, and so the succeding contract violation by them
was justified.2 In all of these cases no differmxtiation can be
made between union officials and ordinary employees, and so they
will be considered as ordinary circumstances, not especially
relevanttoour query, andwillbepursuedne further.

The principle extraordinary circumstances that make discipline
unjustified for union officials, in summary, are: (1) discharge for
activities as a union officer, with another cause, not the real one ,
merely stated as “window-dressing“, (2) the doctrine of democratic _
process, (3) the condition of spontaneous action by workers without
leadership by the union officials, (1.) discriminatory treatment of
officials as contrasted with treatment of rank and file employees
or other officials, and (5) the nature of the union office itself,
which may Justify conduct by union officials that would be intoler-
able when practiced by other employees. These have been examined
in some detail, and the reasoning applied to them by various
arbitrators considered. me should provide valuable material in

formulating a solution to the problem of union officer discipline.

 

l ZIABBS, In re Gravson Heat Control, Ltd. , and the United Electrical,
Radio, and Hachine Workers, (Independent), decision of the

tripartite board, Paul Prescow, chairman; Edwin Thompson, union-
appointed arbitrator 5 and T. H. Fender, employer-appointed
”bitratore

2 llLA9l7, In re the Fox Co. and the Metal Polishers', Buffers',
Platers' , and Helpers' International Union, (AF of I.) , Joseph G.
Stashower, arbitrator.

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Chapter IV
The Areas of Agreement in Arbitrators' Decisions

In arbitrators' decisions during the period from 191.5 to 1951,
the fundamental postulate, basic to all other considerations, that
discipline, including discipline of union officers, is one of the
conditions of work subject to joint determination by employer and
employees, seems to have been unanimously accepted by arbitrators.
The right to discipline has not been recognised as an absolute
right, to be unilaterally determined by either company or union,
but a relative right, in which both union and company participate
in determination, just as they do in determining the wage rate or
the hours of work. No arbitrator in am decision has stated, or
even hinted, that the authority of management in this field should
be unlimited or that union officials should be completely imaune
from discipline, or subject only to discipline from the union.

Inside this broad framework ef agreement on general principle,
a great deal of agreement prevails in the many smaller phases of
interpreting the phrase "good and just cause“. This area of
agreement must be described as being much larger than the area of
conflict in the decisions. Considerable agreement prevails about
what constitutes a good and just cause for discipline, and a
somewhat lesser degree ef unanimity about what can be accepted as
an extenuating circumstance mu also be seen in the decisions.

A rather important point of agreement is the acceptance of the
theory that the degree of discipline, and not merely the decision
to discipline or not to discipline, should be a subject of joint
determination, and not a unilateral decision by the compare. This

“L3!

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l
principle was stated by arbitrator Shipman in one of his decisions

in the form of an old aphorism: "The punishment should fit the
crime". In this particular case, the five principal officers of a
union local were discharged when the union went out on strike in
violation of the contract. The officers had been culpable in not
attempting to keep the other employees at work, but they had not
co-itted the supreme offense of leading the walkout. For this
reason, the arbitrator ruled that the supreme penalty should not be
given to them, and the discharge penalty was reduced in severity to
disciplinary lay-off.

The great iQortance of this principle is more fully recognized
upon noting that arbitrators upheld company discipline, but reduced
the severity of the company's disciplinary action in 1.3 cases of the
211. published during the 1916-51 period.

Arbitrators have unanimously held that the supreme penalty of
discharge was indeed a serious one, to be given only in the most
serious cases. In one decision2 it was referred to as I'a sentence
of economic death." It has accordingly been upheld only for offenses
in which the comm suffered very serious damage from the misconduct
of the offenders or for other offenses that seemed trivial in them-
selves, where the company could prove that the offense had such
serious implications as the undermining of discipline or morale in
the plant.

 

l 2LAl9h, In re the Bethlehem Steel Co. and the United Steelworkers
of America, (cm) Mitchell K. Shipman, arbitrator.

2 15141.31, In re Cutter Laboratories and the United 0111.. and
Professional Workers of America, Federation of Architects, Engineers,
Chemists, and Technicians, Bio-Lab Union, (010) , decision of the
tripartite board, Hubert Wyckoff, chairman; Paul Heide, union-
appointed arbitrator; J. Paul St. Sure, employer-appointed arbitrator.

7‘

we,‘

38

Another principle that seems to have been.unanimously accepted
by arbitrators is the theory that union officials owe a higher
obligation to the contract than do rank and file workers. Using
such phrases as "union office imposes added responsibility"1 and
"union officials, having negotiated the contract, owe higher responp
sibility to the contract than do rank and file workers“,2 arbitra-
tors have generally decided that the causes for discipline should
be more numerous for union officials than for others.

An apparent contradiction to this principle is found in a
decision, previously cited? in which arbitrator Scheiber stated that
'...discharge of a steward should be only for very grave cause“ and
that "additional consideration" is due in.the case of a steward's
discharge. 'While these statements are apparently in conflict with
the idea that a union officer should be more subject to discipline
than others, a closer look at the case in point brings it into
harmony with the other decisions. The steward in question was
discharged for failing to follow correct grievance procedure and
instructing workers not to obey orders of management which he
thought to be in violation of the contract. This was a discharge
for provocative cause to which he would.not have been subject had

he not been an officer of the union. Despite the "grave cause” and

 

l 2LA630, In re the Michigan Contracting Corp. and the International
Brotherhood of Teamsters, Chauffeurs, warehouaemen, and Helpers of
America, (AF of’L), Dudley Whiting, arbitrator.

2 lOLA660, In.re the Goodyear Decatur Mills and the United.Textile
Workers of America, (AF of L), Whitley P. HcCoy, arbitrator.

3 fling, In re the Nathan Mfg. Co. and the International Association
of Machinists, (Independent), Isrel Ben Scheiber, arbitrator. See
note 1, p. 30.

p.

39

I'atiditional consideration" necessary, arbitrator Scheiber upheld the
company‘s action and ordered that the discharge should stand.

It seems reasonable to believe that even in the few cases in
which arbitrators have stated that union officials ought to receive
greater consideration than ordinary workers in discipline cases, the
arbitrators have also accepted the doctrine that union officials
should.be subject to a higher level of discipline than others,
although perhaps greater care should be taken in evaluating their
cases.

Another matter that all arbitrators seem to agree upon is the
idea that the arbitrator should not interfere with the internal
affairs of the union. This principle has been best stated in a
decision; by arbitrator Miller. In this case, a union steward's
discharge had been consented to by the shop committee, but the
steward entered a claim.that a vote of the entire union membership
was necessary before the union could be said to consent to his
discharge. The arbitrator upheld the action of the company and the
shop commites, and denied the right of the arbitrator to "interfere
with the internal affairs of the union". No arbitrator has asserted
this right in any of these decisions.

In the positive causes for discipline, the decisions of arbitrar
tors exhibit probably the highest degree of unanimity that any phase
of the decisions possess. Fighting, the use of profanity, leading a

work stoppage, poor job performance, and.many other causes hare been

 

l lLA29l, In re Spencer Kellog &.Sons, Inc. and the United.Gas,
Coke, and Chemical Workers of America, (010), lax.J. Miller,

arbitrator e

I.

 

£0

accepted as legitimate causes for discipline. A few decisions may
seem to be somewhat out of line with others, but close examination
discloses that the differences that exist can be satisfactorilly
explained away by differences in the attendant circumstances. As a
general rule, discipline has been justified for any positive action
of the employee that interferes with efficient production, or under-
mines the right of management to conduct the business and direct the
working force, and the severity of discipline appropriate to each
offense has been judged to be roughly proportionate to the severity
of the offense, judged by these objective criteria.

In the provocative and negative cases, unanimity in the decisions
of arbitrators does not exist to so great an extent. All of the
arbitrators seem to admit the possibility of discipline for positive,
provocative, or negative causes. Whenan attemt is made to draw a
line between the area in which a union official mav act with impun-
ity and the area in which he becomes subject to company discipline,
however, it will be found that the decisions of arbitrators present
no clear and consistent picture of where such a line exists, if
indeed it exists at all. Pew arbitrators have attempted to draw
such a line, but have only decided the case at hand on its partic-
ular merits, without laying down any principles that would be help-
ful in settling other cases. This is probably due to the fact that
arbitrators do not generally recognise precedent in making their
decisions.1 At any rate, this is a very important factor producing

inconsistencies in decisions on provocative and negative discipline

cmle

 

l Updegraff and McCoy, 92. cit., p. 129. Cf. p. 7, above.

 

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In a number of cases arbitrators have made specific statements

that union officials, when acting in their capacity as representa-
tives of the union, should be exempt from discipline. The reverse
statement has not been made by any arbitrator. In several casesz,
however, some question might be raised as to whether all arbitra-
tors have in fact followed this principle. In a typical case from
this group3 a local union president was discharged for ordering a
mien meeting to be held during working hours. The company defend-
ed its action on the grounds that the mien meeting, under these
circumstances, was a work stoppage. The majority decision of the
tripartite board of arbitration was that the union meeting was in
fact a work stoppage, and that the comparw' s action in discharging

the union president was justified, despite the fact that he was

 

1 W3, In re the Brown & Sharpe Mfg. Co. and the International
Association of Machinists, (AF of L) decision of the tripartite
board, A. Howard Meyers, chairman. TLAll , In re the Rhode Island
Tool Co. and the United Steelworkers of America, (CID), James J.
Healy, arbitrator. 9LA63, In re the Copeland Refrigeration Corp.
and the United Electrical, Radio, and Machine Workers, (Independ-
ant), Paul N. Lehocaky, arbitrator. 101.5213, In re the Ford Motor
Co. and the United Automobile, Aircraft, and Agricultural Implement
Workers of America, (010), Harry Schulman, arbitrator. lBLAZOA, In
re Neon Products, Inc. and the United Electrical, Radio, and
Machine Workers, (Independent), Paul N. Lehocsky, arbitrator.
lALA925, In re the International Harvester Co. and the United Farm
Equipment and Metal Workers of America, (Independent), Ralph Seward,
ubitratore

2 ALA-#19: In re the Eberhard Mfg. Co. and the International Molders'
and Foundry Workers' Union of North America, (AF of L), James P.
Miller, arbitrator. 5LA363, In re the Carnegie-Illinois Steel
Corp. and the United Steelworkers of America, (010) , decision of the
tripartite board, Herbert Blumer, chairman. 8LA807, In re the
Atlantic Foundry Co. and the United Steelworkers of America, (CID),
decision of the tripartite board, Albert I. Cornsweet, chairman;

J. W. Childs, union-appointed arbitrator; Wilfred Andrew, employer-
appointed arbitrator. 12LA238, In re the Sherwin-Williams Co. and
the United Mine Workers of America, (Independent), decision of the
tripartite board, Charles 0. Gregory, chairman.

3 W7, 22. 9—3:.

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acting in his capacity as a mien officer when he performed the
misdesd of which he was accused. In this case, it would appear
that the ordering ef the meeting was not a legitimate union activ-
ity, and that the imnnity from discipline of union officials
extends only to their legitimate activities as officersvof the
union, and not to all their activities.

This modification actually has the effect of giving arbitrators
the authority to declare almost an union activity illegal. It makes
the guaranties of freedom from discipline stated in the earlier
cited cases much less meaningful, for mien officials are free from
discipline only while pursuing legitimate union activities, and
arbitrators, as will be shown more conclusively in the next chapter,
are not in perfect accord as to the definition of proper duties of
union officers.

Generally speaking, the field of extenuating circumstances is
one in which less unanimity among the decisions of arbitrators
prevails than in the field of causes for discipline. Agreement upon
the ordinary circumstances, such as long seniority and high produc-
tivity, is quite well developed, but in regard to extenuating circum-
stances of extraordinary nature, greater disagreement and inconsis-
tency are found than in any other area of this study.

If a company has a long history of anti-union activities, if it
has resisted and fought strongly against .m'y inch of ground that
the mien has gained and finally recognised the mien only out of
necessity, and with obvious reluctance, then arbitrators are inclined

to take a dim view of any disciplinary action against union officers

.\

I‘llll'lalll 4]];

#3

taken by the company. Arbitrators have unanimously agreed that
company discipline with.weakening of the union as its real purpose
should.be negated. Unions have frequently advanced this claim of
anti-union prejudice, and arbitrators have very seldom upheld it.
Even in cases where the arbitrators denied the union claim, however,
they have recognised antidunion activities of the company as a
valid extenuating circumstance and merely denied the union's
assertion that the company was antidunion.1

The claim.of discrimination has been accepted by arbitrators
only to a limited extent. is a general rule, where the discriminap
tion is between rank and file employees, or between union officials,
it has always been considered.by arbitrators as an extenuating
circumstance of the strongest nature. In the special case of a
union officer selected for discipline from.a group of’ordinary
employees, however, the case is much less clear. Some arbitrators
have held that action of this type is discriminatory, and some have
held that it is not. In other words, if a disciplined union
officer can show that other union.officers equally guilty were not
punished, he will always be immune from discipline, but if the
disciplined officer is able to show only that rank and file workers
equally guilty were not punished, his status is somewhat indetermin-
ate, and may vary from arbitrator to arbitrator.

The idea that the nature of the union office should Justify
certain.actions by union officers that would be intolerable when
practiced by others is another theory that has received only limit-

 

luFor example, in 2LA520, In re the neck Mfg. Co. and the United
Automobile, Aircraft, and Agricultural Implement'Workers of
America, (010), Harland J. Scarborough, arbitrator.

1‘

I.

ed acceptance at the hands of arbitrators. Some of the special
immunities of union officers have been accepted, and some have been
only partially accepted.

In evaluating attendance records, in passing on the validity
of disciplinary action for charges of absenteeism, arbitrators have
accepted absences incurred because of activities as a union officer
as excusable absences, and have shown considerable generosity to
union officers in permitting poor attendance records to go undis-
ciplined.

Concerning low productivity or poor work quality, arbitrators
have held without exception that position as a union official could
not Justify such shortcomings.

In.the matter of giving to union officers the right to interp-
ret the contract, or disobey orders of management that they believe
to be in violation of the contract, arbitrators here not taken a
clear-cut, unanimous stand.

In.yet another rather important_area, the determination of the
burden of proof, arbitrators seem.to have shown complete agreement.
This is frequently a very important determining factor in cases
with conflicting evidence. ‘

In the discipline cases for positive or provocative cause,
where company action is based.on some action of the offending
employee, the burden of proof rests entirely upon the company. The
principle of English common law, that a person should be innocent
until he is preven guilty, makes this assumption of the burden of
proof by employers a virtual necessity. A clear statement of the

obligation that employers have due to the following of this common

1.5

law doctrine by arbitrators may be found in a case previously
mentioned , involving a discharge for unsatisfactory job perform-
ance.

In the discipline cases for negative cause, the burden of proof
is shared between the company and the union. It is the duty of the
cemparw to show that 11 illegal act has taken place, and that the
offending union officer could have prevented such action by a proper
exercise of his power and duties as an officer of the mien. It is
the duty of the mien to show that the officer did properly try to
prevent the illegal act, and if this cannot adequately be done, the
disciplinary action of the company should stand. To this extent,
the company having met its obligation of proof, the union officer
is guilty mtil he is proven innocent. A clear statement of this
burden of proof may be found in a decision2 by arbitrator Updegraff,
in which the mion's burden of proof was sufficiently met, and the
company's action was negated by the arbitrator.

In retrospect, it might be seen that the area in which arbitra-
tors' decisions are in agreement is a large one. In includes broad
agreement on the general place of union officer discipline in
collective bargaining, considerable agreement on\ the acceptable
causes for discipline, limited agreement as to what extenuating
circumstances should be accepted, and general agreement as to the

fields in which arbitrators should exercise their authority and the

 

1 214335, In re Grayson Heat Control, Ltd. and the United Electrical,
Radio, and Machine Workers, (Independent), decision of the tripartite

board, Paul Prascow, chairman.
2 llLA675, In re the John Deere Ottumwa Works and the United Automo-

bile, Aircraft, and Agricultural Implement Workers of America, (010) ,
Clarence ll. Updegraff, arbitrator.

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fields that they should refrain from entering in their decisions.
The uniformity attained by arbitrators in these aspects of their
decisions suggests the possibility of achieving more complete
manimity in all facets of the decisions of arbitrators.

1.6

Chapter V
The Areas of Disagreement in arbitrators' Decisions

Although small by comparison with the areas of unanimity, the
areas of disagreement in the decisions of arbitrators include a
number of the points most particularly concerned with the differ-
ential treatment of union officers and rank and file workers.
Different conclusions have been reached by different paths of
reasoning, notwithstanding the fact that arbitrators universally
subscribe to the doctrine that the right to discipline is a relap
tive right only, that cannot be decided by one party'witheut check
from the other participant in the collective bargaining contract.
An attempt will be made here to follow these divergent paths of
reasoning, that an evaluation may be later made of what sorts of
decisions are most conducive to industrial peace and the furtheru
ance of collective bargaining.

In the acceptance or rejection of provocative cause as "good
and Just cause" for disciplinary action, two quite different types
of reasoning have been developed by arbitrators.

Beginning with the premise that the contract is jointly negoti-
ated by company and mien, and provides within it adequate machinery
for the correction of any contract violation by either party, the
first type of decision is quite harsh in dealing with any union
officer who instructs or encourages any rank and file workers to
disobey orders of management which he believes to be in violation
of the contract. These arbitrators rule that no union officer
should ever sabotage an order of management that he believes to be

illegal under the contract, but should instead obey it, encourage

his fellow workers to obey it, and file a grievance under the
contract, eventually presenting his case, if necessary, to an
impartial arbitrator, from.whom.he can always obtain justice.
Since the contract provides that an arbitrator shall interpret the
contract, union officials have no right to interpret the contract,
but should always obey the orders of management as they are given,
and leave contract interpretation to other agencies better quali-
fied to exercise it. The only admissable exceptions to this rule
permitted by this line of reasoning are cases in which the health
or safety of the workers are threatened by a company's illegal
action, in which case the union officer would have authority to
disregard the order of management and instruct other workers to do
likewise. Any other actions of union officials in disobedience of
orders from supervisory employees is punishable, even though the
disobeyed orders were in violation of the contract in the first
place.

Action of union officials in interpreting the contract is held
by this line of reasoning to be really undermining of the contract,
and not to be tolerated. The intent of the union officerin
provoking others to disobey management orders is inconsequential,
because his actions are illegal whatever his intent may be. Arbi-
trators following this path of reasoning usually state that offends»
ers are not immune from.punishment by reason of their union office,
but are more responsible than other union members, since they
participated in the contract negotiations, are the most familiar
with the contract of all workers, and set a perpetual example for

others to follow.

f‘

L9

This line of reasoning, while nowhere stated completely in this

form, seems to run through several decisions of arbitrators during
1
the period under consideration. Under this line of reasoning, the

authority of union officials would be quite clearly defined and
limited. Their functions would be to always urge workers to obey
management orders, and to submit grievances if they considered any
of the orders unfair.

Other arbitrators have taken a somewhat different approach to
the problem of discipline for provocative cause in cases of this
type. In their decisions, a great deal of emphasis has been placed
upon the "good intent" of the union officials. They have taken a
broader view of the proper functions of union officials, and have
decided that where the intent of the union officer was good, and

where his interpretation of the contract was a reasonable one, he

1 3LA285, In re the Mueller Brass Co. and the United Automobile,
Aircraft, and Agricultural Implement Workers of America, (CIO),
David A. Wolf, arbitrator. 3LA779, In re the Ford.Motor Co. and
the United Automobile, Aircraft, and Agricultural Implement Workers
of America, (CIO), Harry Schulman, arbitrator. hLAAl9, In re the
Eberhard Mfg. Co. and the International Holders' and Foundry
Workers' Union of North America, (AF of L), James P. Miller, arbip
trator. ALA7AA, In re the Stockham.Pipe Fittings Co. and the
United Steelworkers of America, (010), Whitley P. McCoy, arbitrator.
7LA3, In re the Nathan.Hfg. Co. and the International.Association of
Machinists, (Independent), Isrel Ben Scheiber, arbitrator. 7LA735,
In re the Texas Company and the Oil Workers' International Union,
(010), decision of the tripartite board. 8LA807, In re the Atlantic
Foundry Company and the United Steelworkers of America, (010),
decision of the tripartite board. 9LA789, In re the Chrysler Corp.
and the United Automobile, Aircraft, and Agricultural Implement
Workers of America, (010), David A. Wolf, arbitrator. lOLA533, In
re the South Side Dye House, Inc. and the Amalgamated Clothing
Workers of America, Cleaners' and.Dyers' Union, (010), A. Howard
Meyers, arbitrator. 10LA660, In re the Goodyear Decatur Mills and
the United Textile Workers of America, (AF of L), Whitley P. McCoy,
arbitrator. llLA462, In re Everett Dyers and Cleaners and the
Amalgamated Clothing Workers of America, Cleaners' and Dyers' Union,
(010), A. Howard Meyers, arbitrator.

(D

50

should not be subject to discipline for countermanding an order of
management. Good intent implies that the purpose of the action is
to protect workers in their rights under the contract, and not a
malicious or spiteful one. Reasonable doubt implies that the
contract provisions are not clear and unmistakable, and that the
interpretation followed.by the union officer, while not necessar-
ily the correct one, is one that a reasonable mind might accept,
and not a far-fetched one invented for the purpose of evading
discipline.

This line of reasoning takes cognizance of the fact that the
grievance procedure is at times necessarily slow. It considers that
it would be unfair for workers to be compelled to obey unreasonable
orders during the weeks that the grievance is being processed
befbre it reaches the final stage of arbitration. It considers
that in eons cases a certain order, such as to work overtime on a
particular day, may be beyond the realm.of managerial authority,
and that if the employee does work overtime and submits a grievance,
and an arbitrator six.weeks later decides that the company exceeded
its proper authority, the offended.worker can get no satisfaction
at all from.the grievance procedure, since he will already have
worked the overtime, and that can never be taken back.

It is quite obvious that an arbitrator following this second
line of reasoning might find a company's disciplinary action unfius-
tifiable, while another arbitrator following the line of reasoning
first.presented here mdght reach a directly opposite conclusion,

even though the facts in the two cases are the same.

(1

51

The second line of reasoning has been somewhat less common in
the arbitrators' decisions than reasoning of the first type, but it
does occur in a number of decisions.1 If this line of reasoning
were to become universally accepted by arbitrators, it would increase
the scope of union officials' authority, and make union office more
meaningful. '

In regard to acceptance or rejection of negative causes for
discipline, again it seems that differing lines of reasoning are
possible. In general, they might be called “strict" or !loose”
interpretations. I ~ ~

A strict interpretation of the functions and duties of a union
officer would leave him subject to discipline for a greater variety
of negative acts than would a loose interpretation. Arbitrators
using the strict interpretation reason that the election of an
individual to union office imposes upon him a very serious respon-
sibility, not only to abide by the contract himself, but to use all
of his persuasive powers to encourage rank and file workers to do

likewise. Any contract violation by any worker might, by'a strict
interpretation of the union officer's duties, be construed as

 

l 3LA37A, In re Ampco Metal, Inc. and the Employee's Mutual Benefit
Association, (Independent), Clarence l. Updegraff, arbitrator.
1LA456, In re the American Transformer Co. and.the United.Electrical,
Radio, and Machine Workers, (Independent), Sol L. Flink, arbitrator.
3LA346, In re the Finders Mfg. Co. and the United Automobile,
Aircraft, and Agricultural Implement workers of America, (CID),
decision of the tripartite board, Haroldll. Gilden, chairman.

9LA8A5, In re the Brewer Dry Dock Co. and the Brewer Dry Dock
IEmployee‘s Association, (Independent), Maxwell Capelof, arbitrator.
IALA302,.In re the International Harvester Co. and the United Farm
Equipment and Metal'Workers, (Independent), Ralph Seward, arbitrator.
luLA925, In re the International Harvester Co. and the United Farm.
Equipment and.Metal Workers, (Independent), Ralph Seward, arbitra-
tor.

1‘

 

52

grounds for discipline of the union.officer if it could be shown
that the official failed to use every power at his disposal to
persuade the worker not to violate the contract and company rules
established under the contract.

A loose interpretation of the union official's function would
still leave him subject to discipline if he neglected his duties as
a union official to encourage workers to live up to the contract,
but would require him to make only a reasonable effort to prevent
the violation, and.would generally place upon him a lighter burden
of responsibility than would the strict interpretation.

The difference between the two interpretations is quite largely
a subjective one. Arbitrators using either interpretation would
expect only "reasonable" effort from.the union official, but one
following the strict interpretation would expect a greater effort
than would one utilizing the loose interpretation. Many shades of
opinion.might exist, of course, between the two extremes of the
meet strict and most loose interpretations. It is difficult to
point out any decisions that illustrate this divergence in interp-
reting the union officials' proper functions, since each case is so
influenced by the attendant circumstances that are peculiar to that
case that no two cases are really comparable.

In a decision 1 probably influenced by a loose interpretation of
union official responsibility arbitrator Seward ordered the reinstate-

ment of a union steward who had been discharged for his responsibil-

 

j

l l5LA75, In re the International Harvester Co. and the United.Farm
Equipment and.Metal Workers, (Independent), Ralph Seward, arbitrar
tor.

53

ity in an illegal strike. The company did not charge that he had.1.d
the work stoppage, but justified his dismissal entirely on the
grounds that he had failed to stop the strike. The arbitrator
finally decided that in the absence of any proof that the offending
steward was the moving spirit behind the walkout "the company has
grounds for suspicion, but not for dismissal".

In another decision1 arbitrator Copelof upheld a dismissal for
negative cause that seemed to be influenced by a stricter interpre-
tation of the union officer's duties. In this case a.number of
workers left their jobs because of the extraordinarily hot weather
that they regarded as intolerable. One of themuwas the union steward
of the department, the others was ordinary employees. All of the
workers who walked out were discharged by the company. As in the
case previously cited, sufficient evidence could not be produced to
prove conclusively that the steward had instigated the work
stoppage. The arbitrator, however, ordered that all the other
workers be reinstated without back pay, as the severity of their
crime did not justify the discharge penalty, but upheld the firing
of the union steward on the grounds that he had failed to persuade
the rest of the men to remain at work.

The difference between these two decisions shows that arbitrar
tors have sometimes taken a more strict view of the union official's

responsibilities than other arbitrators have at other times.

 

l lBLAlhB, In re the Paramount Printing & Finishing Co. and the
Textile Workers' Union of America, (CID), Maxwell Copelof, arbitra-

tore

5A

In the field of extenuating circumstances, the most pronounced
and clear inconsistencies that exist in any area of this study may
be found. Some of these have already been mentioned in chapter
III. An attempt will be made here to explore the different types
of reasoning that justify these differences in decisions.

The doctrine of democratic process has been at times accepted,
and at other times rejected by arbitrators.

The arbitrators that have upheld this doctrine as a legitimate
extenuating circumstance have reasoned that labor unions are
democratic organizations, and that action taken by the membership
at large ought not to leave the officers of the union responsible.
If the entire membership of a union votes to go out on strike in
violation of the contract, the union as a whole is responsible for
the illegal action, but the officers of the union are not, since the
organization of the union compels them to follow the wishes of the
members. If a union officer violates the contract because the
membership of the union forces him to, he should not be subject to
discipline, for to make him so would undermine the democratic
structure of the trade union movement. This line of reasoning has
secured considerable acceptance from.arbitrators.

Other arbitrators have rejected this doctrine as an extenuating

circumstance of valid character. Their principal reason for so

 

I For the clearest statements of this point of view, see 3LA37A, In
re Ampco Metal, Inc. and the Employee's Mutual Benefit Association,
(Independent), Clarence M. Updegraff, arbitrator; 7LA113, In re the
Rhode Island Tool Co. and the United Steelworkers of America, (010),
James J. Healy, arbitrator; and 12LA108, In re Swift &.Co. and the
United Packinghouse Workers of America, (010), James J. Healy,
arbitrator.

.._-—

-o~

_-

55

doing seems to be their feeling that no illegal action should go
unpunished. It would be impossible for the employer to punish all
the members of the union for an illegal act by discharge or lay-off
since that would bring about a termination of production. The
punishment of union officials for such actions, then, is the only
way that employers can punish such wrongdoings, and prevent their
recurrence. This line of reasoning also finds a great deal of
support in arbitrators' decisions.1

Another extenuating circumstance that seems highly susceptible
to differing treatment by arbitrators is the charge of discrimina-
tion against union officers when rank and file members of the union
participate equally in an illegal action, but are not punished.

Some arbitrators have held that since union officials owe a
higher responsibility to the contract than do rank and file workers
singling them.out for disciplinary action when ordinary workers of
equal guilt are not punished is not discriminatory. The fact that
the continuous operation of the firm makes it impossible to
discipline all the union members has also been cited as a justifi-
cation for disciplinary action of this type. 'When an employer
disciplines only union officials for actions in which they were not
more culpable than rank and file workers, some arbitrators, follow-

ing this reasoning, have upheld the company action. Carrying the

 

I For the clearest statements of this point of view, see 3LA285, In
re the Muelle Brass Co. and the United Automobile, Aircraft, and
Agricultural ‘ lement Workers of America, (010), David.A.'Wolf,
arbitrator; ALA7AA, In re the Stockham Pipe Fittings Co. and the
United Steelworkers of America, (010), Whitley P. McCoy, arbitra-
tor; and 7LA3, In re the Nathan Mfg. Co. and the International
Association of‘Machinists, (Independent), Isrel Ben Scheiber,
arbitrator.

a
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me

o..-

56

idea to its logical extreme, some arbitrators have discriminated
against union officers in this manner in their own decisions, by
ordering the reinstatement of rank and file workers, while permit-
ting the disciplinany action against union officials for the same
offense to stand.1 A number of arbitrators have followed this
general line of reasoning, and several of them.have specifically
stated that singling union officials out for discipline is not
discriminatory.2

On the other hand, some arbitrators have followed an entirely
different line of reasoning. They have applied to industrial
disputes the principle of’English common law that holds that laws
should be equally enforced upon all, and that discriminatory
treatment should not be upheld, but invalidated by the courts.
While all arbitrators have followed this principle to some extent,
these arbitrators have applied it to the special case of differential
treatment of union officials and rank and file workers. They have
held that differential punishment meted out to union officials, and

not to lay members of the union, is discriminatory punishment, and

 

l ALA7hh. In re the Stockham.Pipe Fittings Co. and the United Steel-
workers of America, (010), Whitley P. McCoy, arbitrator. 6LA617, In
rtheeBethlehem Steel Co. and the United Steelworkers of America,

(010), Hubert Wyckoff, arbitrator. IBLAIAB, In re the Paramount
Printing &.Finishing Co. and the Textile Werkers' Union of America,
(010), Maxwell Capelof, arbitrator.

2 For example, 3LA285, In re the Mueller Brass Co. and the United
Automobile, Aircraft, and Agricultural Implement Werkers of America,
(010), David A. Wolf, arbitrator; lOLA533, In re the South Side Dye
House, Inc. and the Amalgamated Clothing Workers of America,
Cleaners' and Dyers' Union, (010), A. Howard.Meyers, arbitrator; and
IALA986, In re the International Harvester Co. and the United Farm
Equipment and.Metal Workers, (Independent), Ralph Seward, arbitra-
tor.

("

fl

1'

I.

57

should not be upheld. The principal motivation seems to be a sense
of fairness and equality. In these decisions, arbitrators have held
that disciplinary action by companies should fall equally upon the
officers and the ordinary union members if the offense is the same.
This line of reasoning seems to underlie a number of decisionsl,
being almost equally prevalent with the idea that differential
discipline of union officers is not really discrimination. In one
of these cases, arbitrator Gilden specifically stated that "singling
out union officials for discharge is discriminatory."2 I

The doctrine of spontaneous causation has been rejected by
arbitrators more frequently than it has been accepted by them as an
extenuating circumstance. It is all but impossible to say, however,
that the arbitrators who have accepted this doctrine have utilized
fundamentally different reasoning than those who have rejected it.
Some arbitrators have accepted the doctrine and some have rejected
it, but every case has such differing circumstances, peculiar to it
and no other case, that it is very difficult to compare the cases

with any confidence.

 

l 3LA779, In re the Ford.Motor Co. and the United Automobile, Aircraft,
and Agricultural Implement WOrkers of America, (010), Harry Schulman,
arbitrator. 7LA180, In re the Simplicity Pattern Co. and the United
Office and Professional Workers of America, (CIO), Sidney A. Wolff,
arbitrator. 8LA758, In re Armour &.Co. and the United Packinghouse
Workers of America, (CIO), Harold M. Gilden, arbitrator. 91.13345, In
re the Brewer Dry Dock Co. and the Brewer Dry Dock Employee's
Association, (Independent), Maxwell Copelof, arbitrator. 9LA9AA, In
re the International Harvester Co. and the United.Farm.Equipment and
Metal Workers, (CID), Herbert Blumer, arbitrator. llLAle, In re the
Univis Lens Co. and.L. W. Wornstaff, at. al., members of the United
Electrical, Radio, and Machine Workers, (Independent), Paul N.
Lehoczky, arbitrator.

2 “758, 22s .c—é'i'

58

It would be possible to construct arguments for and against
this doctrine parallel to those used for and against the doctrine
of democratic process. Those arguing for the acceptance of the
doctrine might argue that it is unfair to hold union officers
responsible for actions attributable to the entire union member-
ship. Those arguing against the doctrine might hold that if
accepted, it will permit wrongful acts to go unpunished, and so
encourage them.

In passing on the doctrine of spontaneous origin, arbitrators
have made their decisions quite largely on the subjective basis of
their personal evaluation of the testimony. When disciplined
offenders give straightforward, apparently honest testimony, arbi-
trators are inclined to give the doctrine some credence. When
disciplined officers are inconsistent and evasive in their testi-
mony, and generally influence the arbitrator unfavorably, while
company witnesses seem.more straightforward, arbitrators are
inclined to discredit the doctrine of spontaneous cause.

As has been mentioned in chapter III, this is a very vague and
nebulous question, that requires the determination of the psycho-
logical motivation of the workers. Arbitrators seem.to have been
quite competent psychologists, but it is very difficult to
determine if their psychology is uniform.

The decisions of arbitrators on this point may perhaps be best
summarized by saying that all arbitrators seem to have accepted the
principle that disputes that are genuinely spontaneous in origin
should not leave the union officials responsible. Some arbitrators
have taken a skeptical attitude toward the doctrine, feeling that

[a

f L

59

almost any illegal action involving great numbers of employees must
contain some element of leadership. Some arbitrators have been
inclined to give it fuller credence. The differences in the decis-
ions, however, might be due to differences in the particular facts
of the cases or the personalities involved.

The authority to do certain acts without discipline that would
be punishable when done by rank and file workers is another extenue
sting circumstance claimed by union officers that has received only
limited acceptance by arbitrators.

Arbitrators have taken a quite uniform.position with regard to
absenteeism and poor job performance, but have not agreed on the
important issue of the right of union officers to interpret the
collective bargaining contract.

On this point, two schools of thought seem to be prevalent.

By one path of reasoning, arbitrators have given union officials
this right, free from discipline, and by another reasoning process
they are denied this right. These two schools of thought have
been quite fully discussed in the first part of this chapter, in
connection with the provocative causes for discipline. The
discussion regarding the provocative causes for discipline is
applicable here in connection with the right of union officers to
interpret the contract as an extenuating circumstance.

In summary, it can be said that in passing judgement on several
extremely important issues involving differential treatment of
union officials, the decisions of arbitrators have been contradic-
tory and inconsistent. The contradictory opinions all seem.to make

sense, and are supportable by strong logical arguments. The task of

f.

’1‘

59

almost any illegal action involving great numbers of employees must
contain some element of leadership. Some arbitrators have been
inclined to give it fuller credence. The differences in the decis-
ions, however, might be due to differences in the particular facts
of the cases or the personalities involved.

The authority to do certain acts without discipline that would
be punishable when done by rank and file workers is another extenur
sting circumstance claimed by union officers that has received only
limited acceptance by arbitrators.

Arbitrators have taken a quite uniform position with regard to
absenteeism and poor job performance, but have not agreed on the
important issue of the right of union officers to interpret the
collective bargaining contract.

On this point, two schools of thought seem to be prevalent.

By one path of reasoning, arbitrators have given union officials
this right, free from discipline, and by another reasoning process
they are denied this right. These two schools of thought have
been quite fully discussed in the first part of this chapter, in
connection with the provocative causes for discipline. The
discussion regarding the provocative causes for discipline is
applicable here in connection with the right of union officers to
interpret the contract as an extenuating circumstance.

In summary, it can be said that in passing judgement on several
extremely important issues involving differential treatment of
union officials, the decisions of arbitrators have been contradic-
tory and inconsistent. The contradictory opinions all seem.to make

sense, and are supportable by strong logical arguments. The task of

eliminating the inconsistencies in the arbitrators' decisions
appears to be a very difficult one, for it necessitates not the
rejection of bad reasoning and the acceptance of good reasoning,
but the choosing of the best among completely valid types of

reasoning.

Chapter VI
A Summary of Findings and Some Policy Recommendations

In the year 1951, it is quite difficult to read a newspaper
editorial or a book on the subject of collective bargaining without
encountering the phrase "responsible unionism". Some of our
contemporary authors have contended that unionism has within it the
power to destroy the pricing system and private enterprise capital-
ism.1 A constant aim.of labor legislation, and especially of the
National Labor-Management Relations Act of l9A7, is to produce more
responsible unionism.

Responsible unionism would seem to have two aspects, the
responsibility of the union to the public at large, and the responp
sibility of the union leadership to the ordinary union.member. The
responsibility of the union to the public as a whole includes,
among other things, the propositions that production should not be
needlessly interfered with and that production should continually
be at as high a level as possible. If these aspects of responsi-
bility are to be achieved, management should be given a high degree
of authority to discipline for wildcat strikes, absenteeism, or any
other disturbance of production. The responsibility of the union
leadership to the union members includes, among other things, the
protection of the rights of members under the contract, and the

following of the wishes of the membership, not only in negotiating

the contract, but in the day to day process of grievance procedure

 

l A leading proponent of this viewpoint is Charles E. Lindblom, who
in his recent book, Unions and Capitalism, Yale University Press,
New Haven, 19h9 argues that this destruction is inevitable with the
advent of mature unionism.

 

62

and contract interpretation. To carry out these responsibilities,
union officers must have a high degree of competence and authority.

The great problem concerned with the discipline of union
officials is the problem of how to maintain all these rights and
duties simultaneously, how to give both.management and union
officers their proper authority and responsibility when the two
authorities are in conflict.

./ The solution to the problem.may be found, in part, through more
inclusive and specific contract provisions. The contracts that
have been negotiated during this period seem to outline the causes
for discipline only rather sketchily, and usually fail to specify
what penalties should be attached to the various illegal acts under
the contract. In the field of extenuating circumstances, the
collective bargaining contracts of the 1945-51 period seem to be
almost completely lacking. That extenuating circumstances would
appear, justifying actions illegal in themselves, is a condition
that contract negotiators could hardly fail to anticipate, yet on
this important matter contract provisions are usually silent, and
arbitrators are forced to rely upon the abstract ideas of justice
and equity in.making decisions regarding these circumstances.
Contract provisions describing more clearly just what actions of
union officials are illegal, just what penalties should be approp—
riate for each illegal action, and just what sorts of extenuating
circumstances should be acceptable as justifying illegal acts,
would put the question of union officer discipline on a firmer

footing, and would.permit arbitrators to base their decisions on

63

contract provisions resulting from collective bargaining, rather
than on the much more shaky base of their own ideas of justice.

The divergence in the decisions of arbitrators, as one would
expect, is greatest in those areas in which contract provisions are
the most hazy and incomplete. A resolution of the conflicts in
arbitrators' decisions, and more specific contract provisions
regarding the discipline of union officials should be a great help
in promoting responsible unionism. Knowing more precisely where
his area of authority lies, and where he may not safely tread in
advancing the interests of his union should be a helpful stimulus
to a union officer, and should make for better officers.

In such a situation, the arbitrator will still have important
functions to perform. Unforseeable causes for discipline, such as
practical jokes, and unforseeable extenuating circumstances, such
as VéE day or Opressively hot weather, will still have to be dealt
with individually by arbitrators. Disputes over matters of fact will
still require the hearing of conflicting testimony by an impartial
third party. But the decisions of arbitrators will be more easily
come by, and will rest on a more sturdy footing.

Having decided to resolve the conflicts in arbitratore'
decisions, it becomes necessary to set up goals to be attained,
that we may have a basis for selecting the best from the several
good types of reasoning that arbitrators have followed. The goals
here selected will be two, the encouragement of collective bargain-
ing and the promotion of responsible unionism. 'When faced with a
choice between accepting one of two types of decisions, we shall

attempt to select the one that seems most compatible with these

6A

goals. As proper ends of public policy, they seem entirely defen-
sible. Modern labor legislation is built around them, and their
pursuit seems to be occupying the American economy to a large
extent.

In those areas where the decisions of arbitrators are unanimous,
it appears that the arbitrators' decisions are, in every case,
compatible with the twin goals of encouraging collective bargain?
ing and promoting responsible unionism.

The first conflict to be resolved is the dispute over the right
of union officers to interpret the collective bargaining contract.
Here it seems that the encouragement of collective bargaining and
responsible unionism.demand that union officers should be granted
that right.

The period of time elapsing between an alleged contract viola-
tion and a final decision by the arbitrator as to whether the
action was, in fact, a contract violation is, so to speak, an
interregnum. If the union is denied the right to interpret the
contract during this period, this right passes to management by
default. For management alone to exercise this right, while it is
denied to the union has a closer semblance to unilateral determinar
tion than to collective bargaining.

It is true that if management's right to interpret the contract
during this period were granted, uninterrupted production would
result, thus better serving the public interest of the highest
production possible at all times. But it is equally true that if
the union were given the sole right to interpret the contract

during this period, and the right were completely denied to the

65

company, production would likewise be continuous on the union's
terms. No arbitrator seems to have even considered this possibili-
ty, and it is as equally reprehensible to the principles of collec-
tive bargaining as is the first alternative of giving to management
the sole right to interpret the contract.

The principle of joint determination of the conditions of
employment, then, demands that unions should be granted the author-
ity to interpret the contract equally with management, and that
both should be subordinate to the decision of the impartial
arbitrator. During the period of time before an arbitrator's
decision can be obtained, however, a union officer should be entie
tled to instruct workers to disobey orders of supervisory employees
that he sincerely believes to be in violation of the contract, and
the union official's authority to interpret the contract should be
accepted as a valid extenuating circumstance if the company is
inclined to discipline him for such action, provided that he acts
with good intent and his interpretation of the contract is a reason-
able one.

This line of reasoning would make the union officer a powerful
figure, with great authority and great responsibility. This seems
consistent with the goal of responsible unionism, in which the
union officer must play a powerful role.

A second conflict to be resolved, that is somewhat dependent
upon the first one, is the conflict between a strict interpretation
and a loose interpretation of the duties of a union officer in
arriving at the validity of the disciplinary actions for negative

cause. If the union officer is to have this high degree of author-

U?!

66

ity and responsibility it follows that the strict interpretation
should be followed.

Under existing contracts, where arbitrators have quite often
decided that the union officer has no right whatsoever to interpret
the contract, a loose interpretation of the union officer's respon-
sibility seems entirely logical. The postulate of political
science that responsibility should be commensurate with authority,
however, dictates that if union officers are given the great
authority of contract interpretation, they should be given the
great responsibility of strict interpretation of their union duties,
and should be subject to disciplinary action if they use less than
‘ their utmost efforts to avert any illegal action by rank and file
workers.

These grants of greater authority and greater responsibility to
union officers seem.entirely consistent with collective bargaining
and responsible unionism. A union official with greater responsibil-
ity and authority should be on a more even fecting with the repre-
sentatives of management, who characteristically have a great deal
of authority, in such matters as processing a grievance. This
should create a greater approximate equality of bargaining power,
which is a necessary prerequisite to collective bargaining, and
should make the union officer more capable of carrying out the
wishes of the majority of the union members, which.makee this
arrangement more compatible with responsible unionism.

The doctrine of democratic process, the third major conflict in
the decisions of arbitrators, should be resolved.in favor of the

acceptance of this doctrine as a valid extenuating circumstance.

67

The acceptance of this doctrine really involves a choice of
the lesser of two evils. If the company is not permitted to
discipline union officials because a democratic process preceded
their illegal actions, it is inevitable that some wrongs will go
unpunished. 0n the other hand, if union officers are subject to
discipline for actions that are really the result of a democratic
vote of the entire union membership, the cause of responsible
unionism will be dealt a serious blow, for union officials.may
frequently become unwilling to carry out the wishes of the rank
and file workers for fear of an adverse arbitrator's decision, and
the attendant company discipline.

Consistency with the earlier points made here demands that we
choose the first evil as the lesser one. A union official immune
from discipline due to the doctrine of democratic process could
still be subject to punishment under a strict interpretation
of the powers of the company to discipline for negative cause if
it could be shown that he failed to explain to the workers that
their "democratic action" was a violation of the contract, or if he
did not make a strong attempt to dissuade the workers from.making
such a decision.

Companies have rightly argued that in the case of an illegal
democratic decision, they are unable to lay off or discharge all
the workers participating in such a decision. The discipline of
the union officers has been rejected as an undesirable method of
punishing the union for offenses of this type, but another method
of punitive action suggests itself. In cases where the union is
well-established, and in strong financial condition, a fine

68

levied against the union treasury might be an effective deterrent
to such illegal action. In cases where the union is less well
established a small fine against the individual workers, to be
deducted from.the pay check, might attain the same result. These
alternative forms of punishment are obviously the subjects for
contract provisions, and.not fbr arbitrators to decide on their own
initiative.

In the absence of such contract provisions, however, the ideas
that the union official should be a strong official and that he
should represent the membership of the union require that he should
be immune from.discipline in cases where the wrong is the result of
the democratic process, and not of his instigation.

The doctrine of spontaneous origin, as has been.mentioned
before, is one that arbitrators have usually accepted, but infre-
quently applied. A.more liberal application of this doctrine
by arbitrators would be desirable policy.

At best, this doctrine of spontaneous origin should decide
cases only by default. In cases where the evidence is incomplete,
and does not indicate any leadership of an illegal action, or prove
quite conclusively that the action was pre-arranged or the result
of a democratic process, the only thing left for the arbitrator to
conclude is that the illegal action was spontaneous in its cause.
If everyone quits work at two o'clock, there is certainly reason
to believe that m. stoppage was prearranged, but in the absence of
any conclusive evidence of leadership, the work-quitting should be
considered as spontaneous in origin. It is entirely possible in s

stoppage if this sort that some small clique among the men is

69

responsible, and that although leadership is present, the union
officers are blameless. Under such circumstances, it seems_most
just to give union officers the benefit of the doubt, and consider
the illegal act as a spontaneous one, even if it is obvious by its
nature that some degree of leadership must be involved.

Some arbitrators in past decisions have been inclined to grasp
at straws in this sort of case, and accept evidence of leadership
much less adequate than the evidence they demand in cases of other
types. If a worker is accused of profanity or fighting, arbitrae
tors demand very strong evidence, such as eye-witness accounts,
before upholding company discipline. In cases where illegal acts
are performed, and the evidence indicates that some element of
leadership is involved, arbitrators seem.to uphold action against
union officials on much more sketchy evidence. In accordance with
parallel reasoning regarding the doctrine of democratic process, it
would seem.a lesser evil to have an accasional wrong to go unpun-
ished than to subject union officers to discipline of this type.

Singling out union officials for discipline, when rank and file
members of the union equally guilty are not punished, is discrimin-
atory, and should not be permitted. Responsible unionism is
predicated on union officials of high ability, as is collective
bargaining. It is inconsistent with collective bargaining and
responsible unionism that potentially capable men and women should
be discouraged from.holding union office by discipline of this type.

In the negative and provocative causes for discipline, union
officials are subject to a higher order of discipline than the lay

members of the union. In the extenuating circumstances of extraor-

13".

r“.

70

dinary nature, they may avail themselves of extenuating circumstances
denied to rank and file workers. If these two approximately equal
each other on balance, the possibility of discipline need not deter
anyone from.accepting union office.

A careful consideration of the causes for discipline and the
extenuating circumstances justifying actions of union officials leads
to the conclusion that additional discipline of this type would
overbalance the scales against union officials, and leave them
subject to discipline to an excessive degree.

In a sense, union officers and rank and file employees are never
guilty of the same offense. Fighting by a union steward is one
offense; fighting by an ordinary employee is another. It would be
rather undesirable, however, to attach a different penalty to these
two offenses, both because it might discourage competent individuals
from.holding union office and because it is offensive to justice in
the common law sense.

This does not mean that if a number of workers, including union
officers, are picketing in violation of the contract, that the
officers should not be disciplined unless all the other workers are
disciplined equally. It does mean that the union officers should
not be disciplined for their mere presence on the line, but only if
it can be shown that they were responsible, by their provocative or
negative actions, for the picket line coming into existence. In
other words, they can be disciplined when their affirmative actions
are no more serious than the affirmative actions of others, but
only if their additional provocative and negative actions are

culpable.

71

By eliminating the consistencies of arbitrators' decisions in
this manner, we have created in the union officer a figure of great
power, capable of doing great good or great evil. Those who have
misgivings about the intrinsic value of trade unionism.will look
upon this development with alarm. Those who have more confidence
in the American Union movement will be less inclined to expect
evil, but will instead expect great good from.such a degelopment.

In this chapter have been outlined the types of decisions that
should be made by arbitrators in fields where their decisions have
been varied. If these differences in decisions were brought into
harmony in the manner here suggested, and the clarifying contract
provisions here recommended became more universally adopted, union
officials would have a much clearer picture of how far their
authority went and when it ceased, and management would have a much
more distinct idea of when it could discipline and how it could
discipline. Mass unemployment among arbitrators would not be
produced, but arbitrators' decisions on the problem of disciplining
union officials would probably be reduced in number, and.made more
easy.

The passage of time perpetually brings new problems, and some
future time may demand union leadership of a different sort than the
type here envisioned as the most desirable. At the present time,
and during the forseeable future, the need of unions for strong
leadership should influence arbitrators' decisions on discipline of

union officials in these directions.

 
 
  
  
       

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