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Schairer has been accepted towards fulfillment of the requirements for he Masters degree in Economics ((2/{71 +4-- fa ’wii Major professor Datewflm— ARBITRATION OI DISCIPLINARY GASES IIVOEVING INCOHPIIENGI OB.HEGLIGENCE By Gerald E. Schairer 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 OI.ABTS Department of Economics 1952 "bl: “V ‘7‘."‘ m - zy- 5‘ 2— 5/ The writer vishes to express his appre- cistion to Mr. Charles Killingsvorth and Ir. Henry Albers for their supervision and help- ful suggestions in the development of this thesis. I am grateful for the use of the arbitration decisions published by he Bureau of National Affairs in their Labor “burstion hporgs. .. 2"!) "' I; {I} .3 CHAPTER II. III. Y. INTRODUCTION. . m NATURE OF INCOMPETENCE OB NEGLIGENCE THE USE AND INTERPRETATION OF THE CONTRACT TEE FAIR USE AND BEASONA‘BLENESS OF PENALTIES CONCLUSION TABLE OF GONTEINTS PAGE CEAPTEBI Introduction An incompetent or negligent worker deprives nanagenent of efficient production. If an enployee is unwilling to work, incapa- ble or careless. it is clear that output will suffer. In our highly industrialised plants of today incompetence say even cause danger to the safety of employees or great financial loss to the company. Order and efficiency then are the direct objects of manage- ment disciplinary action. Before the advent of unionisn. nanagement had the sole authority for determining what constituted cause for discipline. flanagement made the rules of conduct and imposed the penalties sometimes arbitrarily. Discharge or other discipline re- sulting from prejudice. ill will. and ignorance of the real circum- stances could not be contested if namgenent obJected. In other words discipline was management's prerogative and the employee's sole recourse was to conform or quit. One of the many notives for union organisation was the desire for elimination of arbitrary use of discipline. It is now generally accepted that management does not have an exclusive right to discipline. Rules for order. standards of efficiency and the degree and type of discipline are more and more being Jointly determined by union and nanagenent. The degree of penetration by the union into this "prerogative“ of management may be greater than is seen in the rules. standards. and specific provisions for penalties made by both parties. Neil Chamberlain found from a stuw of large corporations that there exists a common soaplaint from them “that the union has been responsible for an even greater loss of managerial disciplinary power than contract pro- visions or their application would indicate. It is charged that unofficial group action in the shop has succeeded in intimidating many formen. leading then to believe that to impose discipline will only result in loss of production through a protest work stoppage. or in a contest of power in which their authority may suffer more than it would by permitting laxities in the shep. or possibly in an over-ruling by higher manage- ment or the umpire which nay likewise constitute erosion of their authority.”- irbitration of cases involving incompetence or negligence is the result of management's wanting to define and perhaps check union penetration into this area of control and the union's wish to define and limit management's authority to discipline. The questions of what are fair standards of efficiency or reasonable rules of conduct. are often the subject of arbitration. he answer to these determine whether a worker is guilty or if the penalty is too severe. The Juris- diction of an arbitrator's decision is limited by what the parties themselves intend. The difference in the interpretation of these stated intentions makes the arbiter's Job difficult. the position in which the arbiter thus finds himself is both precarious and important. He could easily be lost at the pleasure of the two parties as to which penalty or rule applies. If he always attempted to please both parties. . the award given would often be a compromise. here are two divergent schools of thought as to how the arbitrator may remove himself from this awkward position and bridge the gap of differing opinions. the Wayne Horse and Noble Braden approach 1. Han aha-berm. is; mm W 1.2 mm misal- Harper and Brothers. ILL. p. 79. 1948. is that there is a clear-cut meaning of the contract and the arbitra— tor must find it and not modify. add to. or cinnge the terms. In Mr. Horse's words 'the arbitrator site as a private Judge. called upon to determine the legal rights and the economic interests of the parties. as these rights and interests are proved by the records made by the parties themselves. be principle of compromise has absolutely no place in arbitration hearingsfl'l hose with this view would hold that penalties and the factors'of incompetence are determined at the time the collective agreement was made aid are clearly written into the contract. he lorry Shulman approach. on the other hand. says in effect tht there is necessary ambiguity in contract clauses. in fact the vagueness which shows no “meeting of the minds“ nay be what made the agreement possible.2 He also nintains in the same address that the arbitrator must get a solution from an industrial relations standpoint or to “advance the parties' cooperation in their Joint eaterprise'. and to do this he must confer and mediate with the parties except where the agreement is absolutely clear-cut. In another work3 Hr. Shulman has said ''an award which does not solve the problem and with which the parties must nevertheless live. may become an additional irritant rather than a cure.“ Ehe discipline for "good and Just cause'| provision found in many contracts is used by the holders of this view to point out the 1. Wayne Horse. 1g 890p; 91 Arbitration g labor W. Common- wealth Review. March 1941. p. 6. For further understanding of this view- point no. 932ml Pwobl in Lem - W mansion. by J- Noble Braden. American Arbitration Association. in “Arbitration Journal“. Ls. vol. 6. pp. 91 ff. 2. Barry 81mm. mmmMum minimum» go_._i_ni_ng Process. an address at Institute of Industrial Relations. University of Galifornia. Berkeley. March 3. 19149. 1951 3. 1:3;1 Chamberlin. W W. New York. KcGraw-Hill. . pe e necessity of private confering with the parties to clear up the vague- ness implied in such clauses. Neither of these views deny an arbitrator's responsibilities to union and management. A prime responsibility in disciplinary cases involving incompetence is to discover and perhaps help draw the limits beyond which magement's rights to discipline are non-existent. Whether there is a collective agreement or not and whether an agreement on- pressly limits management's rights to discipline or not. his right to discipline is not absolute. It is generally agreed. howover. that if an agreement .has no express limitation on such right or if there is no collective agreement. that federal and state labor laws are the only restrictions .1 Arbitrator Rogers adds the restriction that the "gen- erally accepted understanding of employer employee relationships obligates the employer to discharge for cause... even where no contract or bargaining relationship with the enployer exist."2 In the same case he argues that an employer's voluntary submission to arbitrate the issue of whether discharge was for 'Just and sufficient“ cause. is an admission that his right to discharge is not absolute .3 1. Drank Ilkouri. How Arbitration Works. the Bureau of National Affairs. Inc.. Washington D.C.. 1952. p. 253. me cases of 311770. In re nintkote Coupany and fertile Workers Union of America. Local 655 (010). July 16. 19146. David 1.. Cole. arbitrator; and 4&399. In re Iruehauf Trailer Coupany (Detroit. Mich.) and United Automobile d Agricultural Implement Workers of America. Local 99 (CID). August 12. 19%. Dudley E. Whiting. arbitrator; support this view. 2. Mlj. In re Daily World Publishing Co. (Atlantic City. NJ.) 5d the Newspaper Guild of Philadelphia and Camden. Local 10 (010). March 16. 1946, Herbert W. Rogers. arbitrator. Hereinafter citations from labor W m. will appear as in this footnote with page number LA. volume number and an identification of the union. com- PW. and the arbitrators involved. 3. 3LA815. Daily World Publishing Company. Express provision of discipline-for “cause“ or first cause“ is included in most collective agreements today.1 Where this clause does exist the arbitrator's function in regard to it is stated by ar- bitrator Harry E. Platt in clear language: 'it is ordinarily the function of an arbitrator in interpreting a contract provision which requires 'sufficient cause' as a condition precedent to discharge... to safeguard the interest of the discharged employee by making reason- ably sure that the causes for discharge were Just and equitable and such as would appeal to reasonable and fair-minded persons as warrant- ing discharge".2 When specific reasons for discipline are not spelled out. the arbiter must look at the intended meaning or spirit of the contract. Past practice and circumstance. as seen in detail below. determine the intended meaning of good and Just cause. Specific penalties are often provided for in an agreement. The right to discharge. for example. may be given to management while no reference is made for other forms of discipline. It is logical to assume that if a specific right to discipline is reserved to management. this does not restrict him from giving a lesser penalty nor should it compel him to use that specific discipline at the exclusion of others.3 Another responsibility of the arbiter is to review disci- plinary penalties in such a way as to give fair weight to management's decision. Investigation revealed no opinion that an unpire may l. Elkouri. op. cit.. p. 251+. 2. 7u76u. In re Riley Stoker corp. (Detroit. Mich.) and United Steel Workers of America. Local 1907 (610). .7111!“ 11. 1947. Board of arbitration: Harry B. Platt (chairman); Harry J. Lavery (union-appointed arbitrator) and franklin Treat (company—appointed arbitrator). 3. BLAlZZ. In re Auto-Lite Battery Corp.. Owen Dynteo Division (Syracuse. NJ.) a_n_d United Automobile. Aircraft and Agricultural Im- plement Workers of America. (010). April 6, 19%. Harwell Oopelof. arbitrator. ‘ substitute his Judy-eat for that of management's merely because he thinks a penalty is _too severe. At least three arbitrators held the opposite view. Two of those held respectively that management's action could not be set aside for being too severe. I‘unless it can be shown that the company acted in a discriminatory manner or acted arbitrarily. without proper investigation."1 of '...in absence of clear showing that managements' decision was not a bona fide exercise of Judpent and discretion in connection with the maintenance of efficiency and productivity in the plant."2 Arbitrator McCoy puts the question in positive language claiming that I'the only circumstance under which a penalty imposed by management can be rightfully set aside by an arbi- trator are those where discrimination. unfairness. or capricious and arbitrary action are proved-in other words. where there has been abuse of discretion."3 In a summary of his findings he says in effect that action on grounds other than those stated above would constitute illegal usurpation of the proper function of management.“ In all of these statements the arbitrator leaves himself enough authority and recognises his responsibility to set a poor penal- ty aside. An “abuse of discretion' may be that the penalty is too severe under the circumstances or management may have acted in “bad 1. 911510. In re Consolidated Vultee Aircraft Corp.. l'ort Worth Division (fort Worth. Texas) 31 International Association of Machin- ists. Aeronautical Industrial District. Lodge 776. Jan. 26. 191-58. Byron B. Abernetlw. arbitrator. 2. 131A28. In re National Lead 00.. Haguus Metal Division (Los Angeles. Calif.) and International Union of line. Hill and Smelter Workers. Western Kechanics Local 700 (010). April 1. 1919. Paul Prasow. arbitrator. 3. ILA160. In re Stockhom Pipe Fittings Company (Birmingham. Alabama) 33 United Steelworkers of America (CIO). Warch 28. 1916. Whitley P. lGC. arbitrator. lb. lLA162. Stockhom Pipe Zl'ittings Company. faith“. When the arbiter sees mitigating circumstances that manage- ment did not take into account when leveling the penalty. the action may be set aside as an “abuse of discretion“. Although an accused man is innocent until proven guilty and therefore the benefit of any doubt is usually given to the employee. if one reads the decisions of arbi- ters he senses a feeling of high respect for management's Judgments. fhe arbitrator functions within these responsibilities for his position compels him to decide whether management has exceeded his rights and/or whether he has Judged correctly. depending upon the question before him. i'he umpire's position is important because of the extensive effects of his decision. A given award may influence his and others' action on similar disciplinary action which may come up for decision. Standards of efficiency and rules of conduct change ”too frequently to be subJect to binding precedents. but precedents may govern when situ- ations are similar. If a case closely parallels a past one. neither party will be willing to accept less than wlnt was granted before. This is true especially if there is a permanent unpire. “In practice when a permanent tribunal polices an industry. the accumulated de- cisions tend to develop into a body of common law' .1 The effects of this common law when fully developed could be far reaching. If foremen and stewards were familiar with past penalties given for particular offenses of incompetence. hasty and unthinking action on their part would be checked. thus avoiding wasted time in grievance procedures. Quick and easy settlement could be had before the grievance got too 1. National reremen's Institute Incorporated. New York. McCraw- Hill. 1951. p. 155. far.1 he potential sphere of influence which a decision has is great. It is important then for the management. union. and arbitrator to think that an award is a good one. What is a good decision! Mr. Copelof says of arbitration decisions. "given the same set of facts it is presumed that any com- petent arbitrator would reach the same decision".2 Surely he cannot mean that because the facts are the same and the arbitrators competent that similar decisions result. for dissenting decisions are not un- common where more than one arbitrator decides a case. The interpreta- tion of facts. as to the severity of the offense or the degree of in- competence when compared with the performances of other employees. often differ when all participating are thought to be competent. If there is like interpretation of facts among unpires the decisions must reflect principles which when followed result in similar decisions. i'he truth of Hr. Copelof's statement will be evidenced to the degree that these principles are realised. the purpose of this thesis is to discover principles which are reflected in awards given in disciplinary cases involving incompe- tence and. negligence. The most sigiifioant arbitration decisions are found in a publication of the Bureau of lational Affairs entitled. 1922!. M93, m. Two hundred and thirtrone decisions cover- ing a period from 1945 to date were examined. 1- MI WOW. 23.99.1514: Elam. Philmhhia. University of Pennsylvania Press. 19148. p. 202. 2. Harwell Copelof. M M W- Harper Brothers. 3.1.. 19148. p. 110. CHAPTER II The Nature of Incmpetence or Negligence Upon examination. the decisions seem to very naturally answer the questions; Is the employee incompetent! Did the management's disciplinary action violate the contract? Does the penalty fit the offense! The answer to the first question is requisite to the deter- mination of whether an uployee should be penalised. The second will answer the problems of contract interpretation and correct usage .1 If the employee is incompetent or at least partly so the third question must be answered. The decisions with chief emphasis upon incompetence. contract violations and fairness of penalties. therefore. are discussed in this order. Whether a man is incompetent in reality is often difficult to determine. An employee may appear to be incompetent and yet be very able and efficient. Carelessness and negligence may or may not be directly attributable to the employee. A Job may not get done or may be poorly done while the cause may be company originated rather than employee inefficiency or lack of ability. If there is an appearance of incom- petence. but the i-ediate cause for the error made lies with the com- pany. the worker is usually saved from any penalty. The severity of a penalty is often lessened when the employee is only partly guilty. 1. This paper will cover only the interpretation and usage of the contract as found in the cases I have studied. Por a more couplete analysis of this problem an excellent coverage may be found in the work of Prank Elkouri. M W 1913!.- The Bureau of National Affairs. Inc.. Washington. D.C.. 1952. Chap. 6. 10 Eighty-five decisions dealt directly with the question of who was at fault. the company or the employee. Of these the charge of incompe- tence was upheld in thirty-five decisions and either completely or partly reversed in the remaining fifty. Incompetence is not easy to prove. The immediate but hidden or overlooked causes of an error are many and include poor roads or bad weather in case of an accident. an excessive amount of work burden- ing the employee. lack of assistance. poor or improper equipment. a faulty machine. or inadequate transportation. The burden of proving incompetence is of course on the employer. He must show either that the error is not the result of a “hidden“ or “overlooked“ cause or that the employee is definitely incompetent. If personal blame is not es- tablished. but evidence of a "hidden“ cause is not forthcoming. it is ’1 I probable that the uployee is incompetent; All but one; of the cases in which the arbitrator upheld the company there was definite evidence of employee inefficiency or inability. The remaining was .upheld on the basis of "evidence showing only a remote possibility that employee's large output of scrap was caused by reason other than negligence on his part."1 Now conclusive should this proof be! The lack of quality or quantity of evidence was the basis upon which fortyh-six of the fifty decisions reversing company action were decided. A review of some of these give us a relatively clear understanding of the answer to this question. In three cases the evidence given does not 'prove' nor 1. 9u733. In re m1. Gear Works. Inc. (Muncie. Indian-5m United Automobile. Aircraft and Agriculture Implement Workers of America. Local 1095 (CID). Dudley B. Whiting. arbitrator. 11 “support" the employer's finding.1 Arbitrators in two other cases declared that evidence cannot be “speculative“ nor “based on conJec- ture'.2 Three other decisions required that evidence should be 'de- eisive and conclusive".:3 The view that there should be no “reasOnable doubt' of incompetence was held by six arbitrators in two decisions.“ lany other decisions express these same views. Is a different degree of "ccnclusiveness'I required depending on the offense conitted er the penalty giva The penalty was. 'demotion' and the offense. “poor work and not enough work” in the cases last cited. The evidence required l. “LAIBI. In re B.H. Macy & Co.. Inc. (New York. NJ.) MUnited Retail Wholesale and Department Store nuployees. Local 1-5 (010) . July 19. 19%. Mitchell K. Shipman. arbitrator; 6I.A921. In re Acme Limestone Co. (Port Sprag. West Virginia) and United Mine Workers of Anerica. Dis- trict 50. Local 12421; (in). February 10. 1947. Board of Arbitrators: John I. Dwyer (chairman); A.W. Mc'lhenia (employer-appointed arbitrator): and Sam Wantling (union-appointed arbitrator); 8LAl99. In re Dri-Wear Bur Processing Co. (New York. NJ.) m International hr and Leather Workers Union. Local 64 (010). July 23. 19147. Jules J. Justin. arbitra- tor. 2. SLAM-#3. In re llalone a Wde. Inc. (Nuphis. Tennessee) Food. Tobacco. Agriculture at Allied Workers Union of America. Local 19 010). October 26. 19%. Werner II. Wardlaw. arbitrator; 6I.A913. In re South- eastern Greyhound Lines and Amalgamated Association of Street. Electric Railway and Water Coach Employees of America. Division 1238. 1311:. 1315 a 1323 (in). February 28. 191:7. Board of Arbitration: Whitley P. noooy (chairman): Fredrick Meyers (union-appointed arbitrator): and Wayne I. Bamsay (employer-appointed arbitrator) . 3. 7LA231. In re International Association of lachinists. Aeronau- tical Industrial District Lodge No. 727 ad Office hployees International Union. Local 30 (AIL). April 22. 19147. Board of Arbitration: BenJamin Aaron (chairman); Pearl Holt. (union-appointed arbitrator): and Michael Carroll (employer-appointed arbitrator): 7LA147. In re American Smelting and Refining Co.. Federated meme Division (Pittsburgh. Pa.) 94 United Steelworkers of America. Local 1151: (CIO). April 22. 191:7. Robert S. Wagner. arbitrator: lbIA267. In re Newark Wire Cloth Co. (Newark. NJ.) and International Union of Nine. Mill and Smelter Workers. Local 680 (CID). March 3. 1950. Thomas A. Inowlton. arbitrator. 1!. “M52. In re Alan Wood Steel Co. (Conshohocken. Pa.) and Uhited Steelworkers of America. Local 1392 (CIO). July 25. 19%. Board of Arbi- trators: Joseph Brandschain (chairman): P. Otis Zwissler (employer- appointed arbitrator); Clarence Irwin (union-appointed arbitrator); 1711701. In re New Haven Clock and Watch Co. (New Haven. Conn.) 3.4 Ply Playthings. Jewelry .9. Novelty Workers International Union. United Clock Workers Union. Local 459 (010). Jan. 3. 1952. Connecticut State Board of Nediation and Arbitration: Robert L. Stuts. Mitchell Sviridoff. and Warren 1.. Nottram. 12 had to prove inconpetence “beyond doubt". the other cases cited had “discharge“ as the penalty and the alleged offenses involved different degrees of incompetence ranging fro poor work and misconduct to physi- cal inability to do the work. The answer is not. however. an emphatic no. When incompetence involves the question of safety of other em- ployees. arbitrator Platt declares that it is the ''proper concern of management...despite conflicting evidence as to whether crane operator. who had been employed nine years. was actually careless".1 Incompetence or negligence must be identified if proven. We have seen that many false charges were made by companies. The complica- ted nature of the identity of incompetence explains some of these charges. A board of arbitrators in a case involving the Dow Chemical Company fully enlained incompetence.2 his view holds that an employee is incompetent if he lacks either ability or efficiency. These are measured in relation to the quality of work required and a reasonable length of time in which to produce that good quality. If a man cannot do the work within the required time. he lacks ability. If he can do the work within the specified time but does not. he lacks efficiency. According to this definition. the man's ”state of mind" or attitude is the key to under- standing whether he lacks either ability or efficiency. Ability is lacking if his state of mind is directed toward performing his work yet it does not get done. He lacks efficiency if he does not concentrate on 1. 11A238. In re McLouth Steel Co . (Detroit. Michigan) 3,; United Steelworkers of America. Local 2659 (010 . Dec. 3. 1W5. Harry E. Platt. arbitrator. 2. 1214106144. In re Dow Che-tical Co. (Los Angeles. Calif.) and Oil Workers International Union. Long Beach Local 128 (010). Board of Arbitration: Joseph P. Pollard (chairman); William Howard Nicholas (employer-appointed arbitrator); and George Russell (union-appointed ar- bitrator).- No contradiction or challenge to this definition was found in the cases studied. ‘J the performance of the Job and it does not get done. l'erms like '1ack of diligence" “willful or intentional disregard" and "uncooperative attitude' were used by other arbitrators and give a hint as to the 1 expected if not evidenced state of mind. of an inefficient msployee. Negligence and carelessness are also used to describe the inefficient. A man may be incompetent without being negligent. as when he lacks ability. while he cannot be negligent without also being incompetent. his definition does not give a clear cut rule to follow when deciding the question of whether a man is competent or otherwise. l'his is because 'ability' and "efficiency" are measured in terms of the standards of quality of work. and in terns of the time in which that quality of work should be done. In many instances these standards are not clearly defined and must be determined by the arbiter. they may also be clearly defined but differ with different companies or bargain- ing units. In the latter case. the arbiter uses the standards set. In the former. there is room for individual Judpent. but I find no basic disagreement among arbitrators. he employer may discipline a worker for not meeting specific standards of competence. therefore. we need to know the nature of these standards. An examination of arbiter's decisions reveals their views on management rights in setting standards. the degree of quality and efficiency that management may expect from employees and the basis of Judging whether an employee has met the standards set. Arbitrator Naggi held that 'it is management's prerogative to 1 determine what constitutes inefficiency...“. his prerogative is not 1.7 ELM-#39. In re Gaylord Container Corp. (N.J .) and Retail. Whole- sale and Department Store Union. Wholesale and warehouse Workers Union. Local 65 (010). May 17. 1948. Prank Wallace Naggi. arbitrator. unlimited. however. for arbitrator Aaron says that unagement cannot set standards I'to get all the work we can“ .but that “specific quantita- tive standards" must be established.1 here are my instances where the criteria of competence is stated in the collective agreement. i'he employer with such a contract must of course stay within its limits. Management may require certain minimum standards of ability. Editorial employees were discharged because they required “more than normal direction' and an "abnormal degree of editing and rewriting".2 I'Consistant failure to make more than 50 points constituted proof of incapability' in an instance Where the 'contract implies that all workers should be able to maintain a production of 60 points".3 Common wording of decisions use “average“ or 'standard' as a measurement of the minimum which may be required. i'he requirements for standards of efficiency may be determined with about the same degree of accuracy. hployees are expected to be “reasonably responsible'l to take "customary care“. Arbitrator Brecht holds that “employees are properly expected to apply themselves with A reasonable industry to their work". Hr. Larken would have a supervisor 1. lZLA527. In re Western Stove Co.. Inc. (Culver City. Calif.) and Steve Wounters International Union of North America. Local 58 (AIL). larch 25, 19119. BenJamin Aaron. arbitrator. 2. Ila-ABC?» In re Narm Journal. Inc.. Pathfinder Hagasine (Wash— ington. D.C.) and American Newspaper Guild. Washington Newspaper Guild. Local 35 (CIO). August 26. 19149. Alfred A. Colby. arbitra- tor. 3. lOLA217. In re Standard-Coosa-fhatcher Co.. Sauquoit Unit (Gadsden. Alabama) and Textile Workers Union of America. Gadsden Joint Board (010). April 19. l9h8. Board of Arbitration: A.N. March-.11 (chairman); H. Lloyd Pike (employer-appointed arbitrator); and Louie Hathcock (union-appointed arbitrator). it. 6LA500. In re Glenn L. Martin Co. at; United Automobile. Aircraft. and Agricultural Implement Workers of America, Local 738 (CID). Jan. 1+. 1947. Robert P. Brecht. arbitrator. 15 1 disciplined in order to make him aware of his responsibility. The man disciplined here was under the impression that he I'wasn't respon- sible“. It is therefore evident that he was laboring under a delusion since he was a supervisor and it could be reasonably assumed that he should be thoughtful of his responsibilities. In another case. Mr. Updegraff states I'a competent and experienced operator does not re- quire being told to use gauges in a situation where the same obviously should be used“ .2 Standards for workers on special Jobs may be higher than can be expected from the average employee. This view was held in two decisions. In the words of arbitrator Lindquist. the I'nature of foreman's position as key man in production operators entitled employer to require closer cooperation of him than might be expected of ordinary labor" .3 Umpire Wible handing down the decision with two others con- curing states that “in view of the nature of the product. an inspector of aircraft should never approve any work unless he is satisfied that it meets standards'.u 1. 6LA55. In re Standard l‘orgings Corp. (East Chicago. Indiana) and United Steelworkers of America. Local 1720 (CIO). John my Larkin. arbitrator. . 2. 13LA609. In re John Deere Tractor 00.. Waterloo Works (Waterloo. Iowa) 3; United Automobile. Aircraft and Agricultural Implcent Workers of America. Local 838 (CIO).Clarence M. Updegraff. arbitrator. 3. 11LA353. In re Rite Way Launderors and. Cleaners (Minneapolis. Minnesota) a_.p_d_ Laundry Workers Intonational Union. Laundry Workers and Cleaners Union. Local 183 (AWL). Sept. 23. 1988. Leonard N. Lindquist. arbitrator. it. llLA139o In re Cuties-Wright Corp.. Airplane Division. Columbus Plant (Columbus. Ohio) gig United Automobile. Aircraft. and Agricultural Implement Workers of America. Local 927 (010). Aug. ll. 19%. Board of arbitration: Frank H. Vible (chairman); Edward W. Gray (employer-appointed arbitrator); and James Desmond (union- appointed arbitrator). 16 Qie basis of Judging whether an employee has met the standard is past practice. Arbiters Seward and Johannes in two different cases used this basis as a measure (of quality. Hr. Seward said in effect tut a Job description includes not only that which is written about it but also includes flat has been done on that Job in the past .1 If “... similar mistakes had been tolerated'.z Dir. Johannes suggests that they be taken as a consideration of the quality of work that should be demanded when disciplining a worker for not doing better. his is not to say that a firm cannot demand better quality work. but that a penalty for not meeting this higher standard should not be severe if lower quality work had been accepted previously. Another basis is by comparison of the work and earnings of other employees with the achievements of the worker being disciplined. i'his measurement was used by (arbiters in fourteen cases and their representative opinions will follow. nose are comparisons of the quality of work done on the same machine. Arbitrator llcCoy said '. .. there was no showing that instant employee turned out more defec- tive pieces than other employees working on the same machine".3 If an employee works on a piece-rate basis. his earnings are compared with others' on the same machine. In one case a coupany gave a disciplinary layoff for not doing a particularly heavy Job successfully and gave assistance to employees later assigied to that 1. 151322. In re International Harvester 00.. McCormick Works and United Parm Equipment and letal Workers Council 108 (UH-Int). Ralph I. Seward. arbitrator. 2. 12LA261. In re Gaylord Container Corp. (Dallas. Texas) m United Paper Workers of America (CIO). Jack Johannes. arbitrator. 3.. 151A664. In re General Electric 00.. Memphis Lamp Works (Memphis. 'i'enn.) and United Automobile. Aircraft. and Agricultural Implement Workers of America (CIO). Whitley P. McCoy. arbitrator. 17 same Job .1 The arbitrator reversed the coupany penalty because they required more of a man than was expected of employees later assigied to the same Job. Umpire Iillingsworth said in effect that women my be discharged from Jobs traditionally held by men (before the war) if their ability and performance has been 'substantially below what Ins always been required of the majority of men on the same Job".2 Viewing the nature of the standards for competence as a whole gives us a better picture of what true incompetence or negligence is than would an arbitrator's definition alone. Employers have the prerogative of determining standards within reason. They may expect an employee to understand and acknowledge his own responsibility. In large part the measure of this responsibility is past. present and. in one case mentioned. future practice. Comparisons of earnings and efficiency of other employees is also a concrete measure. In each case. however. the arbitrator must use his own good Judgsent and each one merits individual action. Where the requirements of efficiency and ability are stated in the contract. his Job is somewhat simpler. but in many cases not easier. It is seen then that guilt for incompetence is not easily determined. Even in cases where it is. however. other factors often outweigh this fact. The employee may be responsible for the error committed and may be incompetent and yet be allowed to escape the penalty meted out by the firm. Many of these cases determine that l. 9LA828. In re Armour and Co. (Chicago. Illinois) MUnited Packinghouse Workers of America. Local 31‘? (010). Harold M. Gilden. arbitrator. 2. 7LAl63. In re Bethlehem Steel Co.. Sparrows Point Plant (Sparrows Point. Maryland) m United Steelworkers of America (010). April 10. 1947. Charles C. Iillingsworth. arbitrator. 18 the company is unfair because it has violated the contract. When a term. phrase or intent of a contract is violated. it is a question of contract interpretation which will be discussed in the following chap- ter and will be separated from the questions of fairness not directly concerning contract interpretation which will be discussed in chapter four. 19 CHAPTER III The Use and Interpretation of the Contract When a violation or alleged violation of a contract occurs. the arbiter must interpret the intent or wording of the contract if the wording does not make the intent clearly evident to the parties. i'he arbitrator must recognise this “intent" and therefore the guides discussed by ilillzouri.1 if used. are helpful in achieving this aim. i'hat part of the contract which has been violated usually has to be related to other clauses to see that the intent as well as the wording is upheld. There are times even when the wording or in- tent of the part contradicts the intent of the whole. Problems of interpretation arise when one clause contradicts another. There are instances where the employer does exactly what a specific provision prohibits him. from doing. Special problems arise when the contract provides for particular penalties which are not used by the manage- ment. fhe correct application of specific provisions or prohibi- tions is a frequent source of dispute. One employee was transferred and demoted when only the demotion could be used as a disciplinary measure .2 fhe rint to denote was questioned in another case where the contract provided that such an employee “shall be referred to the 1. Elkouri. op. cit.. chapter 6. 2. lltLA882. In re International Harvester Co.. Helrose Park Works and United Automobile. Aircraft and Agricultural Workers of America. Local 6 (010). Whitley P. McCoy. arbitrator. 20 labor department for placement or furlough“ .1 A board of arbitrators found in one instance that if one provision was used. another would be violated.2 They found that a discipline must be specifically pro- vided for if when used it contravenes another provision. The manage- ment of one company took action under a “gross carelessness' clause and not under the l'minor offense' clause.3 They used the wrong pro- vision for the employee was found guilty only of a minor offense. Arbitrator Elson holds that an employer may not discharge physically disabled employees where the contract “gives laid-off employees the right to bid for Job vacancies on the basis of their seniority“. gives the employer exclusive ridit to determine employee's qualifica- tions for Jobs“ and also prohibits him from discharging for the pur— pose of affecting seniority rights.“ Here the umpire had to correlate the parts into a meaning of the whole. An employer's right to discharge was denied where he failed to exercise his right to down- grade .5 After observing these cases one may conclude that an employer cannot use a penalty‘which contradicts a clause which provides for 1. 9LA780. In re Kelly-Springfield Tire Co. (Cumberland. Maryland) fig United Rubber. Cork. Linoleum and Plastic Workers of America. Local 2 (010). Jacob J. Blair. arbitrator. 2. 61-A379. In re American Steel and Wire 00.. Duluth Works 31 United Steelworkers of America. Local 1028 (CIO). Board of arbitration: Herbert Dlumer (chairman); Eugene lanrice (union-appointed arbitrator): and Walter Kelly (employer-appointed arbitrator). 3. 1111722. In re General Controls Co. (Los Angeles. Calif.) International Association of Washinists. Precision Lodge 1600 (Ind.). Spencer D. Pollard. arbitrator. 1}. 6LA5M. In re Eagle-Picher Mining and Smelting Co. (Henryetta. Oklahoma) 539 International Union of Mine. Mill and Smelter. Local #29. (010) Jan. 8. 1947, Alex Eleon. arbitrator. 5. 5LA339. In re The Master Electric Co. (Dayton. Ohio) and United Electrical Radio and Machine Workers of America. Local 751» (c1357 Oct. 16. 1946. Board of arbitration: Charles G. Ballpton (chairman); D.T. Warner (employer-appointed arbitrator); and Charles Sims (union-appointed arbi- trator). 21 another penalty. This is different than the idea that an uployer must use the discipline provided for. We have seen earlier that a clause reserving to management the right to discharge does not restrict him to discharge when a lessor penalty can be given. The key word is 'contmdiction'. This supports the principle that a clause must be used in relation to others and in relation to the whole. The spirit or intent of the contract must. therefore. be kept in mind and be reflected in the interpretation finally given. A definition of words or even whole clauses. toward this end. is a large part of the Job in many cases. The meaning may often be found by studying the composition of the paragraph concerned. The um- pire list be something of a scholar in English grammar in these in- stances. Arbitrator Platt shows us an example of this in one of his cases when he explained that 'qualifioations of 'for proper cause' as used in contract clauses vesting exclusively to management 'the direc- tion of the working force including the right to hire. transfer. pro- mote. suspend and discharge for proper cause.' is construed as restricting only the right to suspend or discharge. not the right to hire. transfer or promote'.1 he meanings may also be gotten by discovering a definition not before used or thought of or rather by elucidating one which has been unconsciously used. The understanding of the words I'efficiency and ability'I as previously spoken of are definitions of this type. One arbitrator used the penalty given to employees involved in similar past offenses as a guide to find which of two provisions should be used in a particular case since the meanings l. 1LA238. In re McLouth Steel Co . (Detroit. Hich.) and United Steelworkers of America. Local 2659 (CIO . Harry E. Platt. arbitrator. 22 of these provisions were questioned;l He found that in other cases which were alike in and. a warning had been given the employee be- cause they were thought to be minor offenses. Because of the similari- ty. the penalty of layoff which the company gave thinking that the employee was grossly careless. was declared improper in favor of a warning which had been given in the past. In the discussion thus'far about contract interpretation. the finalauthority for the decisions given was the contract itself or the meaning which eminates from the intent of the contract. To achieve fair interpretation. however. it is sometimes necessary to rely on past usage of the contract. It must be used fairly and con- sistantly. If it is used one way for a particular grievance case. it should be used the same way under similar circumstances. he contract must not be used contrary to past practice. no case was found to disagree with this philosopm'. Also. it was ruled that a penalty on one msployee which is legal under a contract may not be used if such action would penalise another. but innocent employee.2 In this case. the penalty would have displaced another worker. One company had a contract requiring them to “assign plysically handicapped workers to such Jobs as they can perform and to permit such employees to bump workers of lowest plant seniority on shift".3 here was no evidence presented to show that a Job was available which was sufficiently free from danger. therefore. arbitrator IlcCoy upheld the discharge of the l. llLA722. General Controls Co. 2. 9LA480. IollrSpringfield Tire Co. 3. 2LA326. In re Pacafic Hills (Columbia. 8.0.) and Textile Workers' Union of America. Local 25a (010). April it. 1915. Whitley P. WcCoy. arbitrator. 23 employee. In one case1 there was no convincing proof of the employee's guilt. but the contract authorised the management to transfer a worker for “proper cause'. Management thought he was endangering the safety of other workers. This was found to be sufficient reason for the trans- for. It is thus seen that past applications of the collective agreement and circumstances which the contract does not cover are used to make the decision a fair one. It is also seen that if the safety of employees is threatened or if an innocent employee will be penalised by the strict use of a contract. the application’of it will be sacri- ficed for the sake of good Judyont. If the contract merely authorises manage-out to take disci- plinary action '...for Just cause without specifying what constitutes offenses or the nature of the penalty..."2 the arbitrator must decide whether the disciplinary action is warranted. Even if the contract provides for a specific penalty. it met be a fair one in light of the siren-stances and cannot be considered Just and fair merely because it is in the contract. Considering these aspects involves two questions. one of which has been discussed in chapter two. that of whether a man is incompetent. In other words. is he guilty or partially guilty? The other question involves what is fair according to the agreeaent and past practice. Fairness of applying the agreement has been dis- cussed in chapter three. This leaves us to answer the question of whether the penalty fits the offense. Is it reasonable in the 113m of established precedent? Is it fair according to prevailing notions of Justice? These are dealt with in the next chapter. l. ILAZBB. McLouth Steel Corp. 2. Capelof. op. cit.. p. 110. CHAPTER IV The Fair Use and Reasonableness of Penalties The reasonableness of a penalty depends upon whether manage- ment used good discretion as to what type or how much of a penalty should be given. In the cases studied. arbitrators have decided two questions as to the extent of the penalty. Should a penalty be such that the employee suffers no loss except that intended in the discipli- nary action? The layoff of an employee for disciplinary reasons made it impossible for him to work on the "sixth day“ and thereby earn time and one-half. The union complained of this but the arbitrator decided that "there is no obligation on an employer. in administering a Justifiable disciplinary penalty. to insure the worker against his suffering other contractural consequences as a result of penalty im- posed".1 Two arbitrators hold the view that a company may not impose one penalty after the other for the same offense. In one case. discharge followed a week's disciplinary layoff of an employee accused of poor workmanship. The company reinstated her but without back pay. therefore. umpire whiting thought it "... would compound the penalty for previous derelictions' and awarded back pay for the worker.2 The obligation to uphold this principle is clearly stated by arbitrator l. 3LA656. In re Roberts and Render Stove Go. (Hatbora. Penn.) m United Steelworkers of America. Local 1839 (cm). Joseph Brandschain. arbitrator. 2. 611693. In re rruehauf Trailer 00. (Detroit. Mich.) 3d United Automobile. Aircraft and Agricultural Implement Workers of America. Local 99 (010). Jan. 27. 19M, Dudley 13. mung. arbitrator. McCoy: “when a long established principle. such as protection from double Jeopardy. is applicable“ the arbitrator “should apply it even though he is not a criminal court Judge“. To hold otherwise “would be contrary to fundamental concepts of Justice. and would diminish confidence in arbitration as a process for obtaining Justice".1 The rigsts of both parties must be safeguarded and their interest served if a penalty is to be fair. One company was made to reinstate after discharge of an aged man phsically capable to produce only one-half the normal rate because his age would bar him from other Jobs. but since the shop was snll and “financially insecure“ the em- ployer was allowed to pay “one-half the prevailing rate“.2 Arbitrator Platt suns up a number of points to consider which include: “the adequacy of the instruction given to the employees. whether his error was a canon one or unusual. his general attitude as an employee and his past work record. the substantiality of the damage caused. whether prior warnings were given. and other circumstances...“. He concludes by saying that all must bear relationship to the “prevailing notions of Justice in the industrial co-Iunity“.3 Other umpires include as “other circumstances“. whether there had been a radical change in work assipment. personal family problens. employee's physical condition. relations with foremen and whether the workman had improved or was l. ll+LA882. In re International Harvester Co; 16LA616. In re International Harvester Company. Evansville Works (Evansville. Indiana) and United Automobile. Aircraft and Agricultural Implement Workers of America. Local 1106 (010). May 22. 1951. Whitley P. lcCoy. arbitra- tor. 2. 1211314. In re Dandy Mattress Corp. and United furniture Workers of America. Bedding Local 140 (CID). l'eb. 19. 1949. Israel Ben Soheiber. arbitrator. 3. 1511772. In re Evans Products Go. (Plymouth. Mich.) mUnited Steelworkers of America. Local 23140 (cm), Harry E. Platt. arbitrator. 26 experienced. As arbitrator Platt put it “in imposing disciplinary penalties. an employer should exercise humane discretion“.l flsnagement must make itself understood. act in a relatively consistant manner and be sure that the employee has been helped as much as is reasonable. Many companies have discharged without noti- fying the worker of possible discharge action in case of another error. Imployees should receive “ample“ or “sufficient“ warning in case of probable discharge. Arbitrator Cheney reversed a company's discharge action partly on the basis that a general warning to all employees had been given. but a personal one had not been given to the worker discharged.2 Umpire Shipman mitigated a penalty because there was an “evident possibility that employee did not fully understand the im- port of management's admonislnents“.3 If in all prior cases involving similar offenses. aployees were given two warnings. consistency must rule and discharge cannot come after only one warning.“ It seems obviously inconsistant to discharge and praise an employee at the same time5 or to discharge l. lLAZjl-L. In re Campbell. Want and Cannon Foundry Co. and Inter- national Union. United Automobile. Aircraft and Agricultural Implement Workers of America. Local 539. (010). Rev. 21. 1945. Harry B. Platt. arbitrator. 2. W82. In re Adel Precision Products Corp. (Burbank. Calif.) and International Association of Machinists. Precision Lodge 1600 (Ind.). Aug. 27. 19%. George Cheney. arbitrator. 3. 9LA954. In re Bethlehem Steel 00.. Sparrows Point Plant Sparrows Point. Maryland) m United Steelworkers of America. (010). Job. 16. 19%. Hitchell M. Shipman. arbitrator. 1+. lZLAl. In re Goodyear Clearwater Mills No. l (Bockmart. Georgia) & Textile Workers Union of America. Local 883 (CID). l'eb. l. 19b9, Vhitley P. McCoy. arbitrator. 5. 131.5365. In re Sill Properties. Inc.. D/B/A Bakersfield Press (Bakersfield. Calif.) 53g American Newspaper Guild (CIO). Dec. 30. 19149. Michael I. Iomaroff. arbitrator; 10LA178. In re Daniels-mar Mgraving Co. (Chicago. 111.) an; International Metal Engravers Union. Local 1 (Ind.). March 16. 1948. Nathan P. Feinsinger. arbitrator. 27 for “refusal to improve“ where the “horseplay of supervisors“ would “tend to sustain in the employee's mind the assumption that all employ- ees were entitled to take it easy and to igore the admonitions of supervisors“.1 It is unreasonable to discipline an employee for incompetence when he “had been on the Job only a few months“ with “practically no training“zor “insufficient supervision“ .3 There are various viewpoints as to what management is obliged to do if it suddenly decides to discipline for action previously tol- erated. The difference of opinion among arbitrators is on the reasonableness of the discipline. They all agree that management has the right to set specific standards of efficiency and agree also that the cupany could require that the standards be met. Two companies wanted to cut the work force down for efficiency reasons and make em- ployees do that which was previously not required.“ A disciplinary layoff was given in both of these instances. In three other cases the management wanted to exact more efficiency out of the workers than they had previously required. A layoff was given in one of these. 5 a 1. 15LA38. In re Kraft Foods Co. of Wisconsin (Hausau. His.) and International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America. Local “+6 (AIL). July 27. 1950. Board of arbitration: Clarence M. Updegraff (chairman).wa1ter Graunke and Henry Stanton (union-appointed arbitrators) . and Byron H. Hill and Boyce Bullis (employer-appoint ed arbitrators). 2. BIN-$12. In re Batian-Morley Co.. Inc. (La Porte. Ind.) 5951 United lam Equipment and Metal Workers of America. Local 173 (010). May 23. 1946. Albert A. Epstein. arbitrator. 3. 31AM). In re Jarecki Machine and Tool Co. (Grand Rapids. Mich.) and International Union. United Automobile. Aircraft and Agricultural Implement Workers of America. Local 9% (610). April 15. 19%. Dudley 11. Uniting. arbitrator. 4. lzmfl. Gaylord Container Corp. 9IA828. Armour and Co. 5. 121AlOél. Dow Chemical Co. 28 demotion in another.1 and a discharge in the third.2 Pour decisions showed that the desire for increased efficiency came when the labor supply was lugs and that the coupenies had tolerated the inefficient when there was a labor shortage. In the case of discharge last cited. the company re-established prewar standards of Job performance and was allowed to fire the wartime hires who could not meet those standards. It was held that the employers “necessarily tolerated“ low level per- formance daring the war but “should not be required to continue to do so.“ In another case. the company's discharge for failure to meet peace time standards was reversed in favor of a transfer to a Job whose requirements could be met by the worker? The only recognisable difference between these two instances is that in the latter the em- ployer had upgraded the employee too rapidly during war time. A worker was demoted because he was unusually slow. and the board of arbitrators found that even though the employer had tolerated it over a period of time this “does not prohibit him from taking steps to in- crease efficiency at a later time.“ The toleration of inefficiency when there is no special drive for maximum production is held by arbitrators. however. to be inexcusable unless effort is made to help the employee improve. The employee. in the case covering the exception. was demoted for incom— petence four and one-half years after his promotion. This seems to be a long time to tolerate incompetence. but the umpire upheld the 1. 151A622. International Harvester Co. 2. 7LA163. Bethlehem Steel Co. 3. 5LA60. In re The l'ederal Machine and Welder Co. (barren. Ohio) United Electrical. Radio and Machine Workers of America. Local 730 010). “Sept. 3 and 17. 19%. Dudley I. Whiting. arbitrator. ll. 12111061. Dow Chemical Co. discharge because “repeated attempts by management to assist him in improving his work had failed“.1 A construction company permitted a carpenter to remain through the probationary period. gave him “five or six“ merit increases in addition to a general increase. and twice was reinstated with full seniority after illness. then discharged him for incompetence. The board of arbitration deciding the case thought the discipline was not for “Just cause“ .2 Another board found that a discharge is unreasonable when the company recogiises the employee's inability to “perform newly-assigned work“. but fails to act upon it shortly after his promotion to that position}3 The attitudes or view- points that govem any particular case stems in part from circumstan- ces peculiar to it. Euployers are often accused of discrimination in their dealings with particular employees. or that they discmrged an employee when they could hve transferred or demoted him. What is .fair action under these considerations? When there is a claim from the union that an uployee was disciplined because of his union acti- vity. one board of arbitration holds that the “history of company and union relations“ should be taken into consideration when this charge is made.“ he burden of proof of discrimination. according 1. 17LA580. In re E. I. Dupont De Nemours and Co. E Textile Workers Union of America. Local 674 (010). Nov. 16. 1951. Board of arbitration: Albert I. Cornsweet (chairman); Edward E. Beinbold (employer-appointed arbitrator): and Matthew lynch (union-appointed arbitrator). 2. 51‘3”. The Master Electric Co. 3. 11LA932. In re Art Chrome Company of America (Boston. Mass.) and United furniture Workers of America. Local 136 B (010). Dec. 3. 1948. A. Howard Myers. arbitrator. 4. 21A335. In re Grayson Heat Control. Limited (Iynwood. Calif.) d United Electrical. Radio and Machine Workers of America. Local 1006 CIO). Sept. 10. 1945. Board of arbitration: Paul Prasow (chairman): T. H. Ponder (employer-appointed arbitrator); and Edwin Thompson (union-appointed arbitrator) . to these same arbitrators. is on the employer if the history Ins been anti-union. and on the union if past relations have been favorable. The discipline of union officers raises problems peculiar to their unique position. and is an easy target for the charge of discrimination. The steward is responsible to the company as an em- ployee for meetings. standards of efficiency and ability on the Job. and to the union as its representative. An employee's contractural rights are guaranteed to him in the use of the grievance procedure. Stewards function as a part of this procechare and are responsible for settling worker grievances or directing them through the proper channels. If the steward is not ismrune to management's authority to discipline. enough to enable him to act as a steward. the employee's contractural rights may be infringed upon. Can a steward be declared incompetent if he neglects his duties as an employee in favor of his duties as a steward! In one case an employee failed to keep up her good work record after she became union steward.1 She was discharged for that reason. but the umpire thought that she would still be com- potent on the same Job if relieved from her position as union steward and therefore gave her reinstatement on the. condition that the union replace her as steward. Unions sometimes claim that they have sole authority to discipline a steward if he is incompetent in his union duties and can contest a company discipline imposed upon him as on ordinary employees for incompetence as an employee. Management sometimes says that. since the steward performs union duties at the expense of his work as an employee. it has the authority to discipline 1. 8LA746. In re International Shoe Co.. Bluff City Factory (Hannibal. Missouri) and United Shoe Workers of America. Local 100 A (010). July 15. 19b7, Maxwell Capelof. arbitrator. 31 for union activity. Most arbitrators agree that a union officer may be disciplined as any employee is disciplined for a similar offense. Agreement is also had that these officers must not be punished for either performing or failing to perform any function as a union officer. There are also instances of discrimination where the union or its members are not involved. There. may be discrimination because of bad feelings between supervisors and an employee. One case showed that a worker had antagonized his supervisors in the past and as a result the foremen “maintained a policy of watchful waiting in hope of catching him in some mistake“.1 The worker was discharged but arbitrator Aaron reversed the action. Umpire Baab decided that a dis- criminatory motive may not be used to discharge a man merely because he was handicapped.2 Mr. McCoy held that it was unfair for an employer to give “unequal penalties for equal offenses“.3 Among the “two-time offenders“ of a particular negligence only one was warned tht a third offense would bring discharge and since the action involved discrimina- tion among employees. her discharge was mitigated to a two-week layoff.“ l. 11LA7. In re Consolidated Vultee Aircraft Corp. (l'ort Worth. Texas) and International Association of Machinists. Aeronautical Industrial District Lodge 776 (Ind.). March 12. 1948. Benjamin Aaron. arbitrator. 2. 12LA495. In re Sager Lock Works (North Chicago. Ill.) and United Steelworkers of America. Local 1647 (010). March 28. 1949. Board of arbitration: Otto J. Baab (chairman); D.W. McClay (employer- app§inted arbitrator); and Ernest Sirvidas (union-appointed arbitra- tor . . 3. 101A786. In re Dwight Manufacturing Co. (Alabama City. Ala.) 9d Textile Workers Union of Amarica. Local 576 (010). June 10. 1948. Whitley P. McCoy. arbitrator. 4. 12LA682. In re Goodyear Decatur Mills (Decatur. Ala.) m United Textile Workers of America. Local 88 (m). m 11. 1949. Whitley P. McCoy. arbitrator. 32 A disciplinary penalty given to one employee and not another. both of whom were accused of the same offense. is not fair. again according to arbitrator McCoy.1 the employees here were proven guilty. but the discriminatory action completely nullified the penalty. He stated that “all other questions aside. the discipline must be set aside for the reason that the two employees were not treated identi- sally“ . hployees with different past records of discipline and. work. however. who are guilty of the same offense may be treated differently. One uployee who has been previously disciplined may receive a stiffer penalty than one who has a clean past record“. Identical discipline is not. therefore. required when there are mitigating circumstances for one and not for the other. the company and union may differ as to whether an .ployee should be discharged or receive a lesser penalty like transfer or de- motion. In one case the employee was bumped into a Job on which he did admittedly poor work. He had requested a transfer to his former Job but his request had been denied despite the occurance of a vacancy. He was discharged for his poor work. but the arbitrator awarded a reinstatement with back pay.2 The promotion of one employee was to a Job he was incapable of doing. His previous lower-rated Job was found to be satisfactory. He was reinstated to his previous Job because the employer “should have ducted. rather than discharge“ the employee? 1. 121.9390. In re Dwight Mtg. Co. Md». m.) and Textile work— ers Union of America. Local 576 (CID). Whitley P. McCoy. arbitrator. 2. 6LA593. In re Caterpillar Iractor Co. (Peoria. Ill.) 594 United Farm Equipment and Ketal Workers of America. Local 105 (010). Jan. 30. 19147. Jacob J. Blair. arbitrator. 3. 211283. In re Kansas Motors (Kansas City. Kansas) g Inter- ' national Union. United Automobile. Aircraft and Agricultural Implement Vorkers of America. Local 710 (010). Sept. 20. 1945. Home C. Vakoun. arbitrator. 33 On a doctor's reconendation that an employee “should do no work in- volving conditions unfavorable to his health“ the company discharged him and the arbitrator said that the doctor did not mean that the employee should do no work and therefore reinstated him to his old 30b e1 Arbitrator Brecht pointed out that under a discharge for “Just cause“ provision. an employer may not discharge for inability when the “employer had made no effort to try her out on work comensurate with her capacities“.2 It is evidenced by viewing these cases that an employer should make every reasonable effort to keep a worker in his employ. In another instance bearing out this point an «ployee was transferred at her own request from a Job where she was pro®cing a little under the guaranteed minimum to one that promised more pay. Her piece-rate pay was “appreciably lower“ here than on her old Job and umpire Sachs said that she should have been returned “to her for- mer operation or placed on some other operation“.3 Arbitrator Marshall rendering the decision on a tripartite board seems to disagree with unpire Leary on the right to discharge in lieu of transfer. The former says. a “contract requiring observance of seniority in cases of promotion. curtailment. and. re-employment does not entitle unsatis- factory workers in one department to be transferred to other depart- ments in which they might be able to meet Job requirements“ .14 Leary says in effect that a contract which “guarantees seniority on plant- 1. 2M2’45. In re American Radiator and Standard Sanitary Corp. Malleable Steel Plant (Buffalo. NJ.) and United Steelworkers of America. Local 2580 (010). March 28. 19146. Jacob J. Blair. arbitrator. 2. 6LA500. In re Glenn D. Martin Co. 3. 81.51361. In re Iaylon. Inc. (Baltimore. Maryland) and Amalga- mated Clothing Workers of America. Baltimore Joint Board (010). Nov. 1+. 1947. Leon Sachs. arbitrator. 1+. lOI.A217. In re Standard-Coosa-Thatcha Co. wide basis“ is to be construed to require the uployer to offer to an uployee. who “fails to meet standards for his current Job oppor- tunity.“ a transfer to a less difficult Job if one is available and not held by a senior employee} the difference is not apparently reconcilable . Upon considering the decisions relating to the propriety of the penalty given. I find many circumstances which either com- pletely reverse the penalty or lessen it. This happens because management has violated the contract or past practice or else it has failed in its obligations to act with discretion and good faith. The question of how much a penalty should be reduced if there are mitigating circumstances has yet to be answered. flow is back pay determined! There are cases where the employee gets no back pay. full back pay or only part of it. In three cases the employee was paid one-half of the time he lost. the employee was only partly to blame in all of these instances. In one case the employee's work was admittedly satisfactory in two of the three errors he was accused of. He was awarded pay for one of the two weeks he was laid off.2 Another employee was discharged because of his union activity. however. he did have a poor production record so he received only half pay for the time lost.3 An incompetent l. 10n814. In re Utah Ice and Storage Co. (Provo. Utah) United Packinghouse Workers of America. Local #10 (CIO). April 20. 19%. Villian H. Leary. arbitrator. 2. 17LA701. New Haven Clock and Watch Co. 3. 8n7h8. In re American Lead Corp. (Indianapolis. Ind.) 3; International Union of line. Mill and Smelter Workers. Local 632 (CID). Aug. 1+. 19W. Board of arbitration: Charles 0. Hampton (chairman); Eric G. Hagstrom (union-appointed arbitrator; and Edward B. Baub. Jr. (employer-appointed arbitrator) . 35 carpenter was reinstated with back pay equal to half of back wages he would have received had he not been discharged.1 He was given this consolation because management had tolerated incompetence without doing anything about it. A denial of pay for the first month of dis- charge was the condition of reinstatement in two cases. In one. the employee did unsatisfactory work because of “unusual domestic diffi- culties“.2 The worker in the other case was partly to blame for not taking special safety measures .3 After being discharged the employees concerned in two different cases were put to work by another employer. One was rein- stated with back pay minus his earnings on the other Job.“ He was not proven guilty of the accident he was accused of . The other was also given back pay minus his earnings on the other Job, but only because the employer failed to file written complaints. since he actually was entirely to blame for an accident.5 In one instance the discharged employee was found not guilty and was therefore reinstated. He was denied tVo weeks pay. however. because he admitted that he was uninterested in maintaining l. 5LA339. The Master Electric Co. 2. llLA139. Cuties-Wright Corp.. Airplane Division. Columbus Plant. 3. 8LAh86. In re Armour and Co. (Chicago. Ill.) §_n_<_l_ United Pack- inghouse Workers of America. Local 31+? (010). Sept. 5. 1947. Harold M. Gilden. arbitrator. 1+. 6m75h. In re Alabam Freight Lines (Phoenix. Aris.) and Inter- national Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers. Transport and Local Delivery Drivers. Local 10h (AIL) . March 11. 1947. George Cheney. arbitrator. 5. 5LA430. In re Schreiber Trucking Co. (Rochester. NJ.) and Brotherhood of Teamsters. Chauffeurs. Warehousomen and Helpers. Local 118 (m). Nov. 12. 19%. Jacob J. Blair. arbitrator: 1hu882. In re International Harvester Co.. Melrose Park Works m United Automobile. Aircraft and Agricultural Implement Workers of America. Local 6 (010). April 30. 1950. Whitley P. McCoy. arbitrator. maximum productivity.1 A denial of one weeks pay was awarded for an uncooperative attitude and faulty work by another worker. The penalty was reduced from discharge because the employer took a wrong method. contrary to the contract. for discharging him.2 The extent of partial back pay given must be determined in relation to the particular characteristics of the case. Even where cases appear to be similar. the amount of back pay awarded is not always similar. This can be seen in the cases cited. for in some cases of discharge. where mitigating circumstances prevailed. the award was half pay for the time lost. in others it was denial of one and two weeks pay. Ho other instances of discharged workers getting other work were found than those cited. These. however. show agree- ment that the awarded back pay should be for time lost minus earnings from the other work. The denial of all back pay together with rein- statement is in effect a layoff and will therefore be discussed below. There is no self evident rule governing the length of a pro- bationary period. Of eight cases studied the length was two weeks for two cases. sixty days for three others. six weeks. three months and six months respectively for the last three. All except two specifi- cally stated that if the employees were incompetent at the end of the l. 7LA935. In re L. I. Bales flachine Co. (Walpole. Ian.) and United Steelworkers of America. Local 3722 (CIO). April 28. 1947. Board of arbitration: Manell Copelof (chairman): Burgess P. Heed (employer-appointed arbitrator); and Michael Ryan (union- appointed arbitrator). 2. SLA156. In re Die Tool and nigineering Co. (Detroit. Mich.) g; United Automobile. Aircraft and Agricultural Implement Workers of America. Local 155 (010). April x. 19146. Didley E. uniting. arbitrator. 37 period the original penalty could be given.1 These two.2 however. inferred as much also. None of them provided for different discipli- nary action. If a layoff is reduced to a less severe one. what determines “how much“? A three day layoff was reduced to one-half day for two employees accused of negligence. The mistakes made had been tolerated before so the original penalty was deemed too severe.3 The other case also involved negligence and the three day layoff was reduced to one day because the workers' previous record was good.” An em- ployer gave different layoffs for the same offense to eighteen uployees. He started in the morning to send employees home for the rest of the day for committing a specific error and continued this policy through- out the day. The umpire said that “it is apparent that employer regards less of two and one-half hours' work as an adequate penalty l. lSLA300. In re Miller and Hart. Inc. and United Packinghouse Workers of America. Local 27 (GIG). Sept. 19. 1950. Peter M. Kelliher. arbitrator; 41.11486. In re Godwin Realty Corp. (Bronx. NJ.) g._n_c_1_ Building Service Euployees' International Union. Local 32 E (AIL). Sept. 18. 19%. Norton Singer. arbitrator; GLAZIl. In re Modernage furniture Corp. (New York. NJ.) animated Retail. Wholesale. and Department Store Employees of America. Retail Furniture and floor Covering anloyees' Union. Local 853 (010). June 17. 19%. Irving Weinsweig. arbitrator; hLAl25. In re Safeway Stores. Inc. (Richmond. Virginia) 534 Amalgamated Neat Cutters and Butcher Workman of North America. Local 302 (AIL). July 12. 19%. John B. Dwyer. arbitrator; lLA238. McLouth Steel Corp.; 9M775. In re Hason and Dixon Lines. Inc. (Iingsport. Tenn.) and, International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America. Local #73 (AIL). rob. 11. 19148. Elmer T. Bell. arbitrator. 2. llLA902. Art Chrome Co. of America; 7LAl9l. In re Interna- tional Shoe Co. (Cape Girardeau. Missouri) and United Shoe Workers of America. Local 125 A (010). Feb. 25. 1947. Clarence M. Updegraff. arbitrator. 3. 12LA261. In re Gaylord Container Corp. (Dallas. Texas) and United Paper workers of America (010). lab. 16. l9l+9. Jack Johannes. arbitrator. l4. ISLA769. In re Evans Products (Plymouth. Mich.) and United Steelworkers of America. Local 23140 (010). Dec. 29. 1950. Harry H. Platt. arbitrator. 38 for the offense“.1 Here again we see that the company must be can-- sistant and fair in his disciplinary action. Other than this require- ment. however. there seems to be no guide to determine the extent of the layoff. Should a discharge. if too severe. be changed to demotion. transfer or layoff? If a long service employee or one Just promoted does poor work. they should be demoted rather than discharged. according to umpires Whiting and Vakoun.2 A long service employee for an ice company worked five years as a refrigeration engineer after delivering ice for thirteen years under one management and was fired under new management as an incompetent engineer. Arbitrator Lear said that he “should have been transferred to ice delivery Job which he was capable of performing“ .3 In each of these cases the man was to be given a Job which he could do satisfactorily. when a man is capable of doing a Job but conits negligence. the most popular form of rechiotion from discharge is the layoff. Eighteen of twenty cases of this type involved layoff. the other two were demotions. When a discharge is reduced to reinstatement on proba- tion coupled with a denial of back pay. the resulting effect is a layoff plus a trial period. If the employee requires a trial period and discharge was the original penalty. it is evidently thought that a denial of all back pay is not too severe. The offenses committed where moff was the mitigated penalty range in serious- ness from “responsibility for a very expensive accident“ to “argument with supervisors“. The layoff given ranges from the total l. SLAM. .Jarecki Machine 8: Tool Co; 10LA786. Dwight Mfg. Co. 2. 2LA283. Kansas Motors. 3. lOLABIl-L. Utah Ice do Storage Co. )7 time of the discharge. in cases where denial of back pay is awarded. to one week or in accordance with the provision of the contract. Many contracts make seniority subject to ability to do the Job. The extent of a layoff under this provision would. be subject to the em- ployee's seniority position and his abilities. Whatever the disci- pline finally awarded. it probably conforms to what the umpire thinks will be a sufficient deterrent to a repeat of the offense. There are instances where the umpire is not asked to decide on the reasonableness. Even when asked to do so. however. the arbitrator may decide that a more appropriate penalty is up to the parties to decide upon . CHAPTER Y Conclusion Arbitration awards have limited.the management prerOgative to discipline its employees. lhndamentally. the basis for this limita- tion arises out of the institution of collective bargaining. The trade agreements that arise out of collective bargaining generally provide for procedures that will facilitate the administration of the contract. In.most of these agreements voluntary arbitration is designated as the final step in the settling of disputes. The study of arbitration awards for discipline cases involving incompetence or negligence show that management's right to discipline has been modi- fied in several respects. In summary form the following seem to be the significant modifications.1 What are the modifications when the management prerogative to discipline is restricted by arbitration decisions} 1. The burden of proving the charge of incompetence lies with the company. 2. The evidence should be sufficient to prove guilt beyond reasonable doubt in most cases. 3. lanagement may discipline for not meeting set standards of work only where they are reasonably detemnined and known to the employee. 1. All modifications listed were generally accepted by arbitrators in the cases studied except numbers 8. 9. lO and 11. In these later cases problems which would cause the particular rules to be voiced occured only twice for #8. four times for #9 and #10. and once for #11. 1+. The contract should be used fairly and consistantly. 5. Hanagement should consider circumstances which would mitigate the penalty. 6. An employee should be made aware of possible disci- plinary action. especially where discharge is the pursuing penalty. 7. Barring mitigating circumstances for one of We employ- ees committing the same offense equal penalties should be given. 8. Employees should not be subjected to double Jeopardy. 9. If the labor supply is plentiful and management tol- erates incompetence under these conditions. his future discipline for the same offense is more severely restricted. The import of these rules are many and varied. )hnagement will make sure that none other than the employee's own incompetence is the cause of the error. Kore investigation will possibly be made to determine the true causes before a penalty is given. haployees will possibly be enlightened as to exactly what is expected of them. This may reduce the number of incompetence cases. for those instances where the standards are vague or unknown will probably be fewer if these principles are carried out in action. If principle number four is observed. the parties may feel that it is desirable to put more of what they mean into the collective agreement for if they under- stand the contraot they are more likely to use it fairly and consis- tantly. When such things as the employee's long. good service or unusual home problems are involved or whether adequate warning and 42 training should have been given the employer will perhaps recognise more clearly his responsibilities to the euployee as an individual. Rules seven and eight may tend to make management realize its true motives for disciplining particular workers. Less personal discri— mination may ensue and the conspany will therefore give more reasonable penalties. If an employee is lax. the observance of these principles will tend toward more immediate acknowledgment of incompetence whether a warning. punishment. or help be given to the worker. How do arbitration decisions affect union's penetration into management's prerogative to discipline. The following seem important: 10. Management does not have to tolerate inefficiency when the labor supply is plentiful. 11. The union may not require management to insure con- tractural rights to a disciplined employee. As the union is presented with rules which restrict his challenge of management rights. it will gradually learn. with more certainty. what it may or may not challenge. In a sense. every arbitration decision defines more clearly the relative position of the parties. If these eleven principles are observed. arbitrary discipline will perhaps vanish as a problem. for some companies will act with better discretion than previously. Fewer cases of incompe- tence may be brought to arbitration for the union will have more respect for management's Judgent. Several problems deserve particular attention. One such problem is the Shulman vs. Horse approach to arbitration.1 Shulman 1. These views are more fully discussed on pages 2 a 3 in the introduction. says in effect that the collective agreement is based upon a mass of unstated assumptions which the arbitrator needs to define. Norse maintains that the arbitrator should.always be bound by the legal meaning of the contract since the parties knew what they meant when negotiating. Both.men agree that the parties may use any method they agree upon for settling a dispute and that the arbiter must stay within the intent of the parties. The question is which.approach should.be used to find.this intent. It seems that if arbitration as a.method for the peaceful settling of industrial disputes is to be correctly used.a,more concise and.widely accepted definition is in order. Another problem is that of whether a union officer may be punished.more than other employees because of his dual responsibility. One view holds that management should discipline the steward only for incompetence as an employee and that a greater penalty may not be levied because of the steward's double responsibility. The other side of this argument is that the union.is the only party that can discipline a steward for incompetence as a union officer. .Another view holds that the company may discipline if the steward is incom— petent in either capacity. It is held that if this is done a discipline for incompetence as a union officer should.be levied.not on the steward.but on the union. The analysis here is that the company may sue the union for acts of union activity which are in violation of the contract. An extreme view is that the employer should have full authority to discipline workers no matter what status they are in as long as the offense is reflected in the em- ployee's work. The solution to this problem seems far off. As arbiters decide this argument. one way or another. perhaps a prece- dent will be established. The use of past practice as a guide to disciplinary action presents another problem. Precedent is gradually established with. the continued use of a particular method of handling a case of incom- petence. As industrial situations change. however. old precedents will become obsolete and new ones will be established. It may be that the mere fact a dispute is being arbitrated is evidence of changing conditions. The arbitrator must recognize this and act accordingly. for principles of consistency may be used only where circumstances are relatively similar. l‘urther investigation into the principles and problems of arbitrating disciplinary cases could become the basis of common laws for industry and individual companies. A greater pooling of informa- tion. as in the 32291 W m used in this thesis. by authorities in labor relations would contribute much toward this end. Perhaps the example set by the General Motors Corporation um? ‘ decisions received from arbitrators could be followed by other coupanies. If this type of information is more widely distributed. perhaps the day to day employer-employee problems will be more easily solved. 'I‘I . . 7...;‘4 - ’3‘. t I w . . . C 1 ‘ . .l x \‘rx ‘ ’ t I J ‘ _ I 1- ' ‘ ..d I v ‘ . ' I ' r I ~ . F l l .’ .\ \ x w ‘- v . v m ‘ a, m — v: ' u I . x ! ’ , '. ‘,. .. .. 3 . . a . J . \ I -- " ‘ ~ If-‘ I . . I \ .‘r l \ . . . 'f . I > - I ‘ ' " ‘ ‘. i " . ' ‘ \ . ~ I 7 ‘ ' . ‘ . . - HICHIGQN STQTE UNIV. LIBRQRIES 31293101142663