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AN EXAMINATION OF THE ROLE OF ARBITRATION. PRINCIPLES IN AN EMERGING * * INDUSTRIAL JURISPRUDENCE" A Dissertation Presented to the Faculty of the Department of Economics The University of Southern California In Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy by Paul Prasow June 19^8 UMI Number: DP23237 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Published by ProQuest LLC (2014). Copyright in the Dissertation held by the Author. Dissertation Publishing UMI DP23237 Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 4 8 1 0 6 -1 3 4 6 Pti. &. £ c ^ ? This dissertation, w ritten by ......PAUL.PRASOW............. under the guidance of h.%3. F a cu lty Com m ittee on Studies, and approved by a ll its members, has been presented to and accepted by the C ouncil on Graduate Study and Research, in p a rtia l f u l fillm e n t of requirements fo r the degree of D O C T O R O F P H I L O S O P H Y ...H..„W.„PAraOHE..... Secretary Date.J..\m &...19.4B......... Dean Committee oft Studies . Chairman TABLE OF CONTENTS PART I THE EFFECT OF VARIOUS TYPES OF ARBITRATION SYSTEMS ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS CHAPTER PAGE I. INTRODUCTION ......... .................. 2 Purpose of the study ........ 2 Validation ............. 2 Scope of the study......... 3 Sources of data. • 8 Method of procedure. .. ........ ....... 8 Organization of the study. .........••••• 9 Definition of terms used .............. 11 II. THE QUESTION STATED AND THE PROCESS SURVEYED ... 12 Purpose of the chapter .................. 12 The question........... 12 Historical background................. 1*+ Arbitration’s role in the "emerging industrial jurisprudence"--viewpoints .......... 20 Reasons for seeking arbitration in the settle ment of labor disputes, and a comparison of judicial law and arbitration 22 III. VIEWPOINTS ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS UNDER NATIONAL SYSTEMS OF ARBITRATION 31 Purpose of the chapter .•••••••••••• 31 Definition of terms.......... 33 ii iii CHAPTER PAGE Section A* Compulsory arbitration and its effect on the development of principles and precedents ...........••••• 3*f The Australian Court of Conciliation and Arbitration— background. •••••••••• 35 The Court*s effect on the development of principles and precedents. ......... 36 Section B. Voluntary national arbitration and its effect on the development of principles and precedents ••••••••••.••••• *+8 The Industrial Court of Great Britain— background..................................*+8 The effect of the Industrial Court on the development of principles and precedents . . 50 Section C. Two national systems of arbitration in the United States and their effect on the development of principles and precedents • • • 55 The National War Labor Board— background ... 55 The effect of the War Labor Board on the devel opment of principles and precedents • • • • 58 Summary of the Board’s effect on the develop ment of principles and precedents......... 65 Industrial arbitration under the Railway Labor Act. •••••.•••••••••••••• 66 iv CHAPTER PAGE Effect of the operations of the Rational Railroad Adjustment Board on the develop ment of principles and precedents . . . • • 69 Section D. Summary of findings on national systems . ........... 71 IV. VIEWPOINTS OR THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS UNDER "PERMANENT" SYSTEMS OF PRIVATE, VOLUNTARY ARBITRATION.................... 75 Purpose of the chapter. ........... 75 General discussion..................... .. 75 / Permanent arbitration— introduction ...... 76 Effect of permanent arbitration on the develop ment of principles and precedents •••••• 82 Some concrete illustrations of precedent appli cation under permanent arbitration. . • • • • 91 Limitations on the use of precedents under permanent systems ............ ....... 93 Summary ..........• • •• • ............. 100 V. VIEWPOINTS ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS UNDER "4D HOC1 1 SYSTEMS OF PRIVATE, VOLUNTARY ARBITRATION . ............... 102 Purpose of the chapter. ••...•• ......... 102 Ad hoe arbitration— background. ......... 102 Effect of hoc arbitration on the development of precedents ............................ 106 V CHAPTER PAGE Stare decisis and its relation to ad hoc arbitration • 112 Importance of principles developing in arbi trators' awards ......... 121 Summary ........ ...................... 125 VI. ANALYSIS OP RESPONSES TO QUESTIONNAIRE ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS IN ARBITRATION ............ ........... 126 Responses to key questions in the questionnaire 128 PART II. FACTORS TAKEN INTO CONSIDERATION BY ARBITRATORS IN ARRIVING AT THEIR DECISIONS VII. INTRODUCTION TO CASE ANALYSIS . 1*4-3 General discussion. •• •••.............. 1*4-3 Purpose and procedure of Part II........ 1M+ Sources used. ••••••.•••••••••• 1* 4 - 6 Point of view in selection of cases ...... 1*4-7 VIII. DISCHARGE AND DISCIPLINE............. . 151 Purpose of the chapter. •••••••••••• 151 General discussion. • • • . . • • . . . . . . • 151 The principle of "corrective discipline". • . . 155 Scope of arbitration in discipline and dis charge cases. .••••••••••••••• 160 vi CHAPTER PAGE Modification or remedy for improper discipli nary action........... 165 IX. ABSENTEEISM..................... 168 Purpose of the chapter. .....................168 Section A. General discussion and background • 169 Definition. ••••••••••••••••• 169 Measurement of absenteeism. ...•••••• 170 Extent of absenteeism in industry today • • • 170 Trends observed ••••••...•.•.•• 171 Avoidable and unavoidable causes of absenteeism............. 17^ Control of absenteeism. ............. 176 Classification of arbitration cases involving absenteeism.....................•••••• 179 Section B« Excessive absenteeism 180 General discussion. • .......... ...... 180 Outline of factors considered by arbitrators. 185 Cases evidencing “chronicity** as the princi pal factor..........................•• 186 Cases evidencing tendency toward absenteeism on particular days of week or work period • 191 Cases involving prolonged absenteeism or irregular attendance due to illness .... 193 Corrective discipline as related to excessive absenteeism— introduction................. 200 vii CHAPTER PAGE Cases illustrating .arbitrators* reliance on the principle of corrective discipline • . • 201 Cases illustrating right and wrong usage of the charge of “excessive absenteeismM. ... 206 Section C. Unauthorized, unreported and unexcused absence* *••••••••••••» 210 General discussion • ••••. ............ • 210 Definitions . . . . . . . . . . . . . . . . . 211 Illustrations of contract clauses dealing with reporting and securing permission for absence. ......... . . . . • 21*+ Outline of factors considered by arbitrators . 219 Cases illustrating failure to give notice or to report absence. ••••. .............. 220 Cases illustrating absences in disregard of refusal of permission.......... 223 Cases illustrating the question of the respon sibility of employees to see that notice is received and permission granted. ......... 233 Cases illustrating past practice and its effect .. ............ •••••••••• 237 Section D. Denial of benefits as a penalty for absenteeism. ..................... 2*f 2 General discussion ......... 2*f2 viii CHAPTER PAGE Cases illustrating denial of holiday pay as a penalty for absenteeism- 2kb Cases illustrating denial of vacation pay as a penalty for absenteeism • ..•••••• 256 Cases illustrating denial of overtime as a penalty for absenteeism............... . 258 Cases illustrating denial of bonus as a penalty for absenteeism. •••••••••• 263 Cases illustrating denial of merit increase as a penalty for absenteeism. 265 Section E. Summary of section on absenteeism • 265 X. SUMMARY AND CONCLUSIONS ........................ 285 BIBLIOGRAPHY......... 298 APPENDICES . . . ......................................316 Appendix A . . . . . . ............................ 317 Arbitration Questionnaire 318 List of Arbitrators Who Were Interviewed or to Whom Questionnaires Were Sent..................... 320 Appendix B— Statistics on Arbitration .......... 323 Appendix C— Cases Cited 329 PART I THE EFFECT OF VARIOUS TYPES OF ARBITRATION SYSTEMS ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS It is equity to pardon human failings, and to look to the lawgiver and not to the law; to the spirit and not to the letter; to the intention and not to the action; to the whole and not to the part; to the character of the actor in the long run and not in the present moment; to remember good rather than., evil,.-and ...good that one has received rather than good that one has .done; to bear being injured; to wish to settle a matter by words rather than by deeds; lastly, to prefer arbitration to judgement, for the arbitrator sees what is. equitable, but the judge only the law, and for this an arbitrator was rirst appointed, in order that equity might flourish. — Aristotle, Rhetoric: Grant*s translation, i.13* 137^. CHAPTER I INTRODUCTION I. PURPOSE OF THE STUDY The basic purpose of this study is: to determine whether principles developed in arbitration cases constitute the core of a new common law within an emerging industrial jurisprudence;'*’ to determine how effectively principles are utilized as precedents under various types of arbitration systems; and to indicate within a selected and limited area what some of these principles are and their relationship to each other, II. VALIDATION It is hoped that the inquiry may have significance: ( 1) for the general practitioner— the arbitrator who has the important responsibility of rendering final judgments in con troversies submitted to him, and who is, therefore, vitally interested in principles which may be emerging; (2) for the parties— those employer and union representatives who have 1 In this study the term industrial jurisprudence is used in its broadest sense and connotes the various procedures, rules, policies, and rights developing within collective bar gaining. Arbitration awards are butr one of the mechanisms of this industrial jurisprudence. For further discussion of this point see pp. 12-1 3* 2 0, especially footnotes 1 and 1 2. 2 voluntarily agreed to settle their disputes through peaceful procedures without resort to economic force, and who would be assisted by knowledge of the standards which arbitrators have utilized in arriving at their decisions; and ( 3) for labor economists and students of the social sciences who seek to determine what identifiable principles, if any, may be emerg ing in this relatively new field of labor relations* III. SCOPE OP THE STUDY This study is delimited in several respects. In the first place. our chief interest is with the arbitration of rights, that is, arbitration involving the interpretation and application of existing terms and pro visions of the collective bargaining agreement. We are not concerned with the other major body of disputes submitted to arbitration, namely, controversies relating to the establish ment of new terms and conditions of the contract (arbitra tion of interests). Although reference will be made to this kind of arbitration from time to time throughout the study, especially in Part I, it will be only for purposes of contrast or background, unless it is equally applicable to the arbitra tion of rights, and can add positively to our discussion (as in the ease of the study made by Dr. Rankin on the operation of the Industrial Court of Great Britain). There is as yet a decided paucity of information on the subject of arbitration of, rights, and.it is desirable to utilise whatever has been learned from the studies of criteria in the arbitration of interests* Moreover, although we are mainly interested in volun tary arbitration, a discussion of precedents must include some analysis .of the various compulsory and. semi-compulsory forms of arbitration,-because by their very nature these forms should tend toward the development of principles and precedents. The_ study includes no discussion of the other peaceful techniques of resolving labor disputes, such as mediation, conciliation, or fact-finding, although all of these are import suit forms of settlement* However, there is no place for them here. The second limitation is in connection with, the issues selected for analysis. Because the second section of this study is in the nature of an experimental approach to a method of analysis, it was felt that the contribution would be most useful if attention was directed intensively to a single topic, rather than extensively to a wider range. Even with this limitation, the coverage necessarily has been lengthy. Anything less would have been superficial. Since few studies of the type represented here have been published as yet, although there is an increasing, interest in the sub ject, this investigation may provide a threshold view of a portion of the field. Accordingly, the main,issue -under the heading of "dis charge and. discipline," namely "Absenteeism." has been selected for analysis and investigation. Frequently, of course, the cases overlap into other issues. Thus .discipline for unexcused absence may also involve denial of such bene fits as paid vacations and holidays, overtime, bonus payments, merit increases, or seniority. fcStiere these subsidiary issues seem to warrant discussion of the,, principle s. which govern within them, the relevant points have been givenproper atten tion. The,third, limitation is that of time coverage. For purposes of case analysis in Part IX of this study, the period selected covers the six years intervening between 19^2-19^8, because it was during those years...that, the great est progress took place in arbitration both as to its tech niques and as to its utilisation as a method for settling disputes. The impetus given to arbitration.by the National War Labor Board is well known and will be discussed fully in Chapter III. The necessities of war production caused man agement and labor to agree for the duration of the war to forego strikes and lockouts, and arbitration was .substituted on a large scale. Uncertainty and sus.picion._of . the arbitra tion process were considerably dispelled by experience with it; and. it is, consequently, more often employed now* A naturalconcomitant of this greater acceptance of arbitration was the publication of awards in full text for the use of those interested in developments in.the arbitra tion.field* Thus it is only during the period selected that printed awards have .been available. Because Part II of this investigation takes, the form of. extracted portions of deci sions, rather than citations in full text, it was thought important that only those cases be included which readers could refer to in.full text, should they so desire* Such reference is madepossible by published awards. The fourth limitation is in the restriction of cases to those decided in .the United States. Although.in Part I of the.study, attention is directed to the arbitration experi ence of the Australian and. English labor courts, this analysis is only in connection with the discussion of the development of precedents and principles, and has no reference to. Part II, where, the cases are analyzed. 4 final limitation is in the. number of cases included. Although approximately three hundred cases have been studied in full text, only about a third have been cited. An attempt has been made to include only particularly fully.reasoned or significant cases. Repetitious awards are most often referred to merely by citation in a footnote. Those decisions which provided no clear statement of the principles involved have 7 been omitted altogether* Many cases have been left out which might have amplified the study, but the investigator believes that the inclusion of these would not have significantly altered or modified the basic conclusions. reached. With con siderations of time and space a factor, judicious sampling was attempted rather than wide inclusiveness, especially since the study is meant to serve as an introduction to prin ciples rather than as. an exhaustive case book. The limitation of the study within these boundaries therefore, is of necessity, an arbitrary one. But it is the hope of the investigator that the cases selected and included will be enlightening and-substantially representative. Admittedly, the material that has been left outside the scope of this investigation is of considerable importance, which in itself constitutes sufficient_ substance for many an addi tional or complementary study. To sum up then: Part I of this research will consider viewpoints on the development of a common law or standardized principles in arbitration. Part II will confine itself to voluntary labor arbitration cases involving the major issue of absenteeism (under the general heading.of discharge and discipline) arising under existing contracts in the United States, during the period.19^ 2-19^8 inclusive. IV. SOURCES OF DATA 8 The data for Part I of the study are derived primarily from general works, periodical and journal articles, addresses, and statements by the recognized authorities and arbitrators in the field* In addition, personal interviews and responses to a questionnaire produced further pertinent information, which is incorporated in the study. The data for Part II were obtained from the collections of cases published by the various arbitration services. These materials are described in detail in the introductory chapter of Part II. Although secondary references were also consulted for this part of the report, the principal dependence was placed on the primary sources. V. METHOD OF PROCEDURE Due to the relative newness of this field of investi gation, there are no well-established methods of procedure. A number of studies of arbitration have been made, but almost all of them differ significantly in purpose from the present study. Therefore, their methods of investigation were not found applicable here. In this study the writer has made a careful examina tion of the existing references on the subject, sparse as they were, wherever they occurred. After sifting and collect ing the observations pertaining to the inquiry, the data were 9 classified, arranged, and correlated into a systematic whole with interpretative comments freely interspersed* In order to do justice to the authorities cited on this controversial and often misunderstood, subject, verbatim quotations in most instances have been,utilized in.jpreferenee to mere reference, VI. ORGANIZATION OF THE STUDY In Part I, the method of research has been to analyze qualitatively the existing information on the subject of principles and precedents in arbitration. Chapter II, of this section, introduces the question of how arbitration is contributing to the developing indus trial jurisprudence. It also surveys the historical back ground of arbitration and examines the arbitration and judi cial processes comparatively. Chapter III surveys the opinions of selected authori ties who have studied the various forms of national arbitra- tion systems as to the effect of these systems,upon the development of precedents and principles. One, major example of each type of system is considered, with sufficient back ground and explanation provided to permit understanding of the subsequent discussion. Chapter IV is a parallel treatment with regard to TDftrntanent systems of private voluntary arbitration in the United States. 10 Chapter V considers, in the. same manner, temporary systems of private voluntary arbitration in the United States, Chapter VI is a qualitative analysis, of the responses to a specially-developed questionnaire which was presented 2 by mail .and personal interview to some forty arbitrators currently active in the field. This, analysis was included to provide up-to-date and first-hand opinion on the subject under. consideration* It is interesting to note.how closely these recent views of the practitioners in the .field, coincide with the conclusions of those - v t f i o have studied, the question objectively over the past few decades. Part II begins with Chapter VII, which introduces the purpose, scope, and organization of the second part of the study. Chapter VIII discusses discipline and discharge in general. Chapter IX analyzes and.discusses in detail.cases con cerned with absenteeism. Chapter X sums, up the findings and conclusions of the entire study. Appendix A contains the questionnaire used in this These represent approximately one-fifth of the total number of arbitrators listed in the. Key to Labor Arbitration Reports. April. 16, .19^7 (Washington^ B. C.: Bureau of National Affairs, Inc.) 11 study, and an index of the names of those interviewed. Appendix B contains statistical data on temporary and permanent arbitration systems in the United States. Appendix C contains an alphabetical table of cases. VII. DEFINITION OF TERMS USED Since the basic terms ’ ’arbitration principles,” ’ ’precedents, ” "common law,” and ’ ’industrial jurisprudence,” are subject to varying interpretations, it is desirable at the outset to define these terms as used In this study, BiF 1 1 arbitration principles” we mean clearly enunciated and reasonable generalizations adopted or professed by the arbitrator as a guide to his action in deciding a given case. By ”precedent” is meant a judicial decision which may serve as a rule in deciding future similar or analogous cases. By ”common law” we mean case law handed down through decisions of judges, which decisions once made, may become precedents for future cases. A ”common law of labor relations.” therefore, if formulating at all, might be developing through the decisions of arbitrators, who serve judicially In cases arising from labor-management disputes. Finally, by "industrial jurisprudence” Is meant the emerging civil rights, duties, rules, and policies— implied or expressed— which serve to regulate the conduct and mutual responsibility of the parties in all phases of their col lective bargaining relationships. CHAPTER II THE QUESTION STATED AND THE PROCESS SURVEYED I. PURPOSE OF THE CHAPTER This chapter has for its purpose the introduction of the idea of an emerging system of industrial jurisprudence and the attempt to learn where in this jurisprudence labor arbitration principles fit, according to present-day informed opinion. As background, the arbitration process is traced to its historical origins, and is contrastedwithjudicial pro cedure. The advantages of arbitration in the settlement of industrial controversies are surveyed, and the reasons for the preference by the representatives of management and labor for arbitration.rather than court procedure in the disputes involving interpretation of contracts are analyzed. Views on the possibility of a common law emerging from arbitration are presented. The chapter then concludes with abrief introduc tion to the subject matter of the subsequent, discussion which examines in greater detail the questions posed in this intro ductory chapter. II. THE QUESTION In ISft-ly Sumner Slichter wrote of the “emergence of a system of industrial jurisprudence“ through the processes of collective bargaining• In brief, his thesis was that workers, 12 13 through their unions, tend to build up a series of rules, policies, procedures, and rights which become accepted modes of conduct governing relationships andactivities in indus- + 1 try. In the seven years since Professor Slichter first described these policies and their relation to industrial management, voluntary arbitration has come into widespread acceptance and, use for the settlement of industrial disputes, especially those disputes concerning the interpretation or application of existing contracts. It is not surprising that the. tremendous volume of decisions resulting.from recent arbitration has tended to 1 Sumner H. Slichter, Union Policies and Industrial Management. Publication Number 8j?, Institute of Economics (Washington, B.C.: The Brookings Institution, 19^1), p. 1. Slichter stated: "In the second place. • . . [collec tive bargaining] is a method of introducing civil rights into industry, that is, of requiring that management be conducted by rule rather than, by arbitrary decision. In this latter aspect, collective bargaining becomes a method of building up a system of *industrial jurisprudence.' Through the institu tions of the state, men devise schemes of positive law, con struct administrative procedures for carrying them out, and complement both statute law and administrative rule with a system of judicial review. Similarly, laboring men through unions, formulate policies to which they give expression in the form of shop rules and practices which are embodied in agreements with employers or are accorded less formal recogni tion and assent by management; shop committees, grievance pro cedures. and other means are evolved for applying these rules and policies; and rights and duties are claimed and-recognized. When labor and management deal with labor relations analytic ally and systematically after such a fashion, it is proper to refer to the system as 'industrial jurisprudence.1M lb reflect the rules and policies which have become accepted modes of conduct (of which Professor. Slichter wrote), and is expressing these in developing principles. Will these prin ciples remain isolated from each other, or is a core of nsub stantive labor law. 1 1 now in process of formulation, however incipientlv? If so, what is its present stage of development and what is its likely future according to the opinions of authorities and arbitrators themselves? AndT if notT then what of the principles that are evolving? What _is their inter relation and significance? How do they affect present labor problems, and to what extent do they control future labor policy? III. HISTORICAL BACKGROUND Labor arbitration, as that term is understood today, is an outgrowth of the collective bargaining process. Its development as one_ of the accepted means _ of. settlings contro versies between management and labor has closely paralleled that of collective bargaining. Arbitration as the last step or terminal point in the grievance procedure is provided for in most collective bar gaining agreements today, and is referred to as judicial arbitration, or arbitration of disputes involving rights. In disputes over interestsT namely, those involving the terms of a future contract, arbitration is less universally accepted. 15 The basic reason for the greater acceptance of arbitration in disputes concerning rights is that the provisions of the con tract itself constitute pre-existing standards to guide the arbitrator in reaching a decision, while in disputes over, interests there are generally no such pre-existing standards applicable. Although arbitration for the settlement of labor controversies has played a prominent role in the United States only since 19^2, i.e., the beginning of World War II, it is not a new device, as the Encyclopedia Britannica notes: Arbitration [ is] a term derived from the nomen clature of Roman law, and applied to an arrange ment for taking, and abiding by, the judgment of a selected person in some disputed matter, instead of carrying it to the established courts of justice.* 1 The practice of settling commercial and international disputes by reference to a neutral third party dates back at least to the time of Aristotle; but its most extensive use in earlier times is found under the Roman law, as Updegraff and McCoy have so well explained: In all systems of primitive law three elements of social control invariably seem to make early appearances. In the Roman Law these social con trols were designated as fas, boni mores, and lex. The weakest of these in the beginning of the his torical period was lex or law. In all legal sys tems which truly develop it comes to be the dominant factor, but fas, the ethieal or religious teaching 2 Encyclopedia Britannica. l*fth edition, II, p. 219* 16 and boni mores, public opinion always remain important factors* The judge comes to deal almost entirely, with law. At any rate it domi nates his technique of decision. The arbitrator, however, deals with all three.3 Thus Updegraff and McCoy conclude that the arbitration process may have preceded the establishment of a legal order and “antedates, in fact, written history, but at times seems almost to disappear by reason of having been superseded by a system, of law which involves the .compulsory submission of dis putes to authority, rather than the voluntary selection of if and submission to an arbitrator. Professor Allen of Oxford University also, in his 5 definitive study of law in the making, indicates that the iudices of ancient Rome may well be considered the counterpart of the modern arbitrator. His description provides consider ably more detail, and together with the citation from Updegraff and McCoy supplies a fair picture of early arbitrators and their effect on developing law. . . . It has recently been suggested . . . [states Professor Allen] that the influence of these magis trates in the development, of the classical law has been seriously underestimated, and, indeed, almost 3 Clarence C. Updegraff and WhitleyP. McCoy.Arbitra tion of Labor Disputes (Chicago: Commerce Clearing House, 1 9 » P* 3* k Ibid., p. *f. 5 Carle ton K. Allen, Law in. the Making (Oxford: Oxford University Press, 1939j 3<* edition), pp. 159-160• 17 wholly neglected. We are apt to think of them as mere *lay* fudges, comparable to the modern jury man, or perhaps the amateur Justice of the Peace. In reality, it is probable they, were seldom persons wholly untrained.in.the law. They might be chosen from the album iudieum. which was composed of per sons of distinction possessing the legal and admin istrative knowledge common to. most.educated Romans— senators, knights. tribuni aerarii. and.the like; or the judge might be nominated by the parties; and litigants would not be likely to agree upon any casual, untrained person,, but would naturally, choose an arbitrator whose qualifications commended him to both parties. . . . M. Collinet collected a number of extremely suggestive instances which seemed to show not only that in the classical period the iudices were, in .many cases, men.of considerable legal attainment and experience, but that their decisions had at least a limited, de facto author ity in several important branches of the laws for example, a decision of [one] iudex in 133 B.C. ... was cited ... as being still, authoritative more than 700 years later. Continuity of.doctrine was probably imperfect, since there is little ground for supposingthat the sententiae (delivered orally) of the iudices were systematically reported; but it may well have been that a consistent, course of decisions bv iudices materially influenced the development, of doctrines such, as _good. faith in con tracts, degrees of diligentia, or the general standard of conduct expected of a bonus pater familias. Reviewing the evidence which he assem bled, M. Collinet concluded that *it seems to be proved that res iudicatae. if they were not one of the direct sources of Roman Law, were at least an indirect source, and it is perhaps for this reason that neither the jurisconsults nor Justinian rec koned them among the sources of law, whereas Cicero, who wrote as a philosopher rather than a,jurist, included them among the sources of law.,D Thus, in terms of a device for settling disputes arbitration is an ancient process. Allen, loc. cit 18 In the United States, arbitration is almost as old as the nation itself* For example, New York had an arbitration n law as early as 1829* And, according to the records, Maryland established a similar law in 1870* In 1886, permanent arbitra tion, boards were established in both Massachusetts and New York* Today, forty-seven states, South Dakota, being the lone exeep- 9 tion, have set up some kind of arbitration machinery* Congress has had over half a century.of experience with the arbitration process* Since the passage of the Arbi tration Act in 1888, a succession, of railway labor statutes have made some provision for labor arbitration, although it must be noted that the current federal, arbitration act does not include labor disputes. However, the greatest increase in the use of arbitra tion (as has. been noted before and as will be discussed in greater detail later), came in World War II, when the necessi ties of urgent war production caused management and labor to agree "for the duration” to forego strikes and lockouts. The “Revised Statutes, 1829," p. 3> Ch. 8, title l*f, cited in Prentice-Hall Labor Course (New Yorks Prentice-Hall, Inc., 19^7), P* 13011. ® Annotated Code* 1879. Ch. 379> sec. 1-3* cited in Prentice-Hall Labor Course. loc. cit. 9 5* or review, see Ludwig Teller, 4 Labor Policy for America (New York: Baker, Voorhis & Co., Inc., 19^5) > PP» 171- 175. 19 National War Labor Board was established by. the President in January, 19^2, to handle all labor-management disput es referred to it. But the Board soon discovered it would collapse under its own.administrative weight if it attempted this task. Accordingly, it very early adopted the practice of referring certain types of disputes back to the parties for arbitration under their, own procedures. As has been stated in a standard labor arbitration services During all the years of its operation, the Board deprecated the referral of disputes to it which the parties could, by any means or device, settle by themselves. It encouraged the parties to arbitrate their disputes which would.not yield to collective bargaining. Even after accepting.disputes, it fre quently referred them for final settlement to arbi trators whom it appointed and. whose award it would review only to note vdiether national.policies on wage stabilisation had been correctly interpreted by the arbitrators.!0 Indicative of the rapid increase in the number of voluntary arbitration proceedings in the last ten. years is the experience of the U. S. Conciliation Service (now the Federal Mediation and Conciliation Service). Although during the fiscal year 1 9 3 7 -3 8 there were only eighty requests to the Service for appointment of arbitrators, by the number had risen to 11515 and .in 19^, the first year of peace after World War II, the U. S. Conciliation Service 10 Labor Arbitration Reports (Volume. 1, Number 1; Washington, D. C.: The Bureau of National Affairs, Inc., 1 9 W , pp. i - i i . 20 reported little lessening of this demand, even though war time pressures for peaceful settlement were removed. Over a thousand joint labor-management -requests for appointment of 11 arbitrators ^sre made that year. IV. ARBITRATION'S ROLE IN THE "EMERGING INDUSTRIAL JURISPRUDENCE"— VIEWPOINTS One authority, Ludwig Teller, stated in his recent books "Arbitration is one of the mechanisms „through-_which both man agement and unions are seeking to evolve a new labor juris- 12 prudence." Kurt Braun of the Brookings Institution also appears to consider that arbitration agencies, particularly the pri vate ones, are creating a new law, whichJhe calls "the labor 11 Edgar L. Warren. Final Report of.Director of Concil iation. August 21, 19^7> (mimeographed), p. 11. See also Appendix B of this study for further arbitration statistics. Ludwig- Teller. Management Functions under Collective Bargaining (New York: Baker, Voorhis & Company, 19*+7), p. 3^9• Leonard Smith states even more specifically: "In any given plant, the solutions, of everyday employer-employee prob lems will result in the development of a code of industrial jurisprudence. This code consists of the precedents estab lished by decisions made in settling employee problems and grievances • It also includes memorandums of understanding between the company and the union on points in the labor agree ment that require clarification. Supplements to the agreement and arbitration awards [italics not in the original] are other sources of decisions which, form the .company's industrial juris prudence." Collective Bargaining (New York: Prentice-Hall, Inc., 19^6). 21 law of the future,M and which hebelieves is necessary since clearly defined and applicable rules relating to the settle ment of labor disputes (especially in connection with inter ests) have not yet been established. He states: In this respect they [the arbitrators] are also organs of the self-administration of the economic body and substitutes, or rather pace-makers, for the legislature. It cannot be said that they are less qualified to explore and to write down the developing law than a parliament, particularly -jo when they include experts, as they always should. Lord Amulree, first President of the Industrial Court in England, expressed his belief that the Court was likely to establish a start toward development of a body of law by virtue of its written opinions. He said: In stating„the_ considerations to which they had regard in arriving at their decisions, the Court have taken the first tentative step towards the for mation of a body of. industrial case law. The anal ogy between what they have attempted and what was done by the old Courts of Common Law is an interest ing one. The early Courts endeavored on the particu lar facts of a case to give a decision which would be regarded by men in general as a right one— not right according to 'Law,1 which was embryonic and. unfounded, but right according to prevailing ideas. Much depended on custom because custom or established practice was regarded as embodying what may be called.the good sense of mankinds and a safer guide than, abstract notions of right and wrong. Notwith standing the appeal to custom and later .to precedent, however, the principles of the Common law were in fact rules devised by the fudges themselves as con ducive to a proper adjustment of men* s relationships 13 Kurt Braun, The Settlement of IndustrialDisputes (Philadelphia: The Blakiston Company, 191 *1 *), p. 120. 22 U M in the various affairs of life. It is hardly open to doubt that should the Industrial Court or any other industrial, tribunal of authority continue to indicate the principles or considerations upon which its decisions .are based there would, develop in course of time a body of 'law* governing indus trial relationships, recognition of which would not only facilitate the settlement of disputes which in fact occurred but would tend to prevent their occurrence; for the rights of the parties in any matter of difference would thus be indicated from the outset,15 V. REASONS FOR SEEKING ARBITRATION IN TEE SETTLEMENT OF LABOR DISPUTES, AND A COMPARISON OF JUDICIAL LAW AND ARBITRATION One of the main.points of difference between the arbi tration procedure and the formal judicial process is the l*f See later discussion of this interpretation of the Court's function as criticized by Dr. Rankin, infra. Chapter III, p. 50 ff. Lord Amulree, Industrial Arbitration in Great Britain (Londons Oxford University, 1929), pp. 190-192. However, Ducksoo Chang remarks _about this very state ment, "Our review of the Court's decisions seems hardly to warrant this conclusion. For the general principles enun ciated by the Court have often served as a cloak, and have borne no real organic relationship to the point actually made in a particular decision. A direct relationship between general principles and a particular ease is really the essence of the 'precedent' that is the key-note of any system of case laws. The actual result of the Court's decisions has been more in the nature of compromise or conciliation." British Methods of Industrial.Peace (Londons P. S. King & Son, 1936) , pp. 166- 157. 23 greater flexibility of arbitration* Much more latitude is permitted the arbitrator both as to procedure and as to the gathering and interpretation of facts* In both forms of proceeding, courtroom and arbitra tion, two main frames of reference are called upon: - the facts of the case and the appropriate laws* The judge in a formal court first ascertains the facts and them applies the law as a yardstick to the facts in order to arrive at his decision. The law under which he operates is statute law (promulgated by legally constituted bodies), and common law (or evolved precedents, contained in the decisions of Judges in earlier similar cases). In arbitration the written terms, of the con tract which the arbitrator is called upon to interpret is 16 analagous to the statute law of the. court; likewise, perhaps, the earlier decisions of the same or other arbitrators may be compared to the common law. These decisions may be sub mitted either by one or both of the parties, or applied by the arbitrator himself because of the apparent pertinence or William H. Davis, in a speech entitled The Final Determination of Labor Disputes, expressed this point as follows: "Arbitration makes a final determination of a labor dispute by an impartial decision, within the framework of a contract or of a definite custom* An arbitrator acts judi cially within.limits established by agreement express or implied." (Before the Annual. Award Dinner of the American Arbitration Association, November 23, 19**2, mimeographed), p. 1* persuasive force of the reasoning involved. However, where the judge is bound to observe legal precedents and has little choice in the matter, arbitrators are not only free to disregard former decisions and decide each case entirely onJLts own facts and merits, but under present preference, they are even expected to do so except in 17 limited situations. This point will, be developed fully in the next few chapters, especially Chapter V, which discusses temporary forms of voluntary arbitration. As to the facts of a case, although a. court is usually quite adequately^equipped for obtaining most types of data, it cannot compare with, the mobility which the arbitrator has for tracking down industrial details• Not only does the arbitrator meet informally with the parties, a considerable advantage in itself5 but, with the permission of the parties, he may make on-the-spot investiga tions. This is well described by Updegraff and McCoy as follows The arbitrator may proceed to the scene of con flict, he may observe the operation of a machine, the location of the place, the chemical tests of goods where quality is in dispute; he may examine the account books that may be relevant to a ques tion before him, he may accept information from informal sources_ without. regard to the somewhat hampering technicalities of the law of evidence, ^ Such as when the arbitrator is permanent umpire under an agreement which more or less binds him to respect his own previous, or the foregoing umpire’s awards, except where there is valid reason for departure. Infra. pp. 81 sag. 25 and he may ordinarily proceed promptly to the decision of the matter in controversy -without the need of postponing decisions in favor of other matters pending on a long docket, as might be the case with the judge,if the matter were to be considered in court.1 - - » In many instances arbitrators are appointed from the ranks of skilled men in a particular profession, known to have peculiar or. professional knowledge of the technical matter in dispute. The selection of similarly qualified judges under similar cir cumstances is, of course, impossible. Relatively few eases involving interpretation of exist ing labor contracts reach, the courts, since arbitration pro vides an alternative which in many ways is more desirable for 20 the parties. Time-consuming, expensive eourt procedures are made unnecessary. But, more important than, these characteris tics, perhaps, is the nature of the labor controversy itself— the complicated elements inherent in it. As Soule has stated: The question as to what the facts are ... is far more intricate. and. difficult than in any except the most complex cases at law. It is not decided merely by examining witnesses and judging which ones are telling the truth. It is not a matter of finding ^ However, cf. experience of the First Division, of the National Railroad Adjustment Board, whose dockets are three years behind. This appears to be one of the serious disadvan tages of having a single agency handle all of the eases which arise. Infra, pp. 69-70; 89. ^ Updegraff and McCoy, op. cit., pp. 17-18. 20 Frances Kellor, Arbitration in Action (New York: Harper & Brothers. 19^1), p. b, states: "The purpose of arbi tration is • • • to determine a difference or dispute amicably, privately and finally and, in.doing so, to exclude a court of law from such determination. 26 out -whether a person committed, pr.did not commit, some act which has been charged.t21J It involves wide-flung investigation of economic and social conditions which often are indefinite and diffi cult to get at•22 Although Soule is referring in this comment specifically to the settlement of wage disputes, his analysis is applicable in a considerable, degree to the type of labor arbitration cases with which we are concerned. Still another important factor which makes parties prefer arbitration is the fact that the.arbitrator is fre quently a specialist in labor matters to the extent of devot ing a substantial portion of his time to this field. As Updegraff and McCoy have stated: ... the arbitrator with wide knowledge of labor unions and the terms active in the adjustment of labor disputes obviously enjoys a technical advan tage over any but the most exceptional judge in weighing of labor and .industry rights, even in those instances where the matter in dispute between the parties_might properly be also a subject of litigation.23 For all these reasons, and others as well, the parties to a labor dispute more willingly look to arbitration than to on Although this is often the case in arbitration of rights. 22 George Soule, Wage Arbitration (New York: Macmillan Company, 1928), p. 3* Also see Mary T. Rankin. Arbitration Principles and the Industrial CourtT An Analysis of Decisions 1919-1929 (London: P. S. King & Son, Ltd., 1931), Chapter 1. Updegraff and McCoy, op. cit.. p. 18. 27 2b procedure through the courts, Ludwig Teller offers the suggestion that there may be another and perhaps more compelling reason, as well. He states: The advantages of expertness, expedition, infor mality, freedom from established law do not, especi- , ally in the field of labor relations, exhaust the motives for the widespread resort to arbitration. The larger purpose is to establish & new, now non existing body of common law. [Italics not in the original]. To say simply that, management or organized labor has sought, in arbitration to get away from the law as laid down in judicial decisions is to overlook the paucity of decisions dealing with the interpre tation of collective bargaining agreements.2? Teller considers that with no formalized method yet adopted "to codify, nor even to systematize, the new juris prudence, . • , the time is clearly at hand.to establish a centralized source of reference for arbitration awards." For this purpose he suggests that as a beginning, at least, 2b Further comparisons between arbitration procedure and formal judicial process are made at various points through out the study. Teller, Management Functions under Collective Bar gaining. on, cit., p. 3h- o. As the results of this inquiry will demonstrate, it would seem that Mr. Teller.is overstat ing the case somewhat. It is basically, accepted here that collective bargaining is developing a jurisprudence separate from the courts, and that arbitration plays.an important role in this development5 but as will be shown, this does not necessarily mean that, a development. of a. common, law based on arbitration principles is either desired or sought. 28 government-appointed arbitrators be required to write deci sions on cases which they hear* These the government should publish at its own expense, thus serving "to accelerate the growth of an identifiable body of principles governing labor arbitration.H For he believes that some of the remaining reluctance of the parties to accept arbitration may be attrib uted to r , the vagueness of its rules and principles.1 1 He con siders that the objection to formalization can be overbalanced "by the general willingness of Americans to accept and abide by a body of law based upon wholesome regard for the needs and problems of existing institutions.** In another of his published works, Mr. Teller reiterates his belief that: "Neither the common law nor our judicially interpreted con stitutional law has been able to provide collective bargain ing with a realistic, efficient set of guiding rules and 26 principles." 26 Teller, 4 labor Policy for America, op. cit.T pp. .20- 21, 2b, See also pp. 171-172, 17b, 203, 206, 255, which include pertinent material on Mr. Teller*s reasons for reaching the conclusion shown in the excerpts cited, as well, as his sugges tions for a "labor court" which he considers would meet the needs of collective bargaining for a specialized administra tive body devoted to labor problems. Another interesting suggestion in the same general vein, but operating somewhat differently, was made by William M. Leiserson. He recommended the establishment.of two agencies: (1) a National Conciliation, or MediationJBoard and (2; a National Labor Tribunal .or Labor Court: the former, to pass no judgments on the merits of disputes; the latter not to mediate, but to confine itself, to arbitration.or adjudication, as well 29 Thus there are some who hold the belief that a body of common law is and should be formulating by way of the emerging industrial jurisprudence and developing arbitration principles which latter are so important a part of that industrial juris prudence. But not all authorities, by any means, consider that such a common law development is possible or likely in the foreseeable future (as will be indicated as this study pro gresses). And even among those who deem it possible, there still comes up the question of whether this development would be a desirable or workable one. It is to these latter points that we will devote our attention for the remainder of the first part of the study. The next four chapters will examine the various types (Continued) as act as a Board of Inquiry to hear disputes and make recom mendations. As Mr. Leiserson conceives it, the mediation agency would encourage parties to settle their disputes with out the assistance of the governmental, arbitration court, but '•the Tribunal.should be available for arbitrating any matters submitted to it by mutual agreement. Its decisions would develop precedents and serve to guide private arbitration boards throughout the country.u Labor Relations Reference Manual. Vol. 17 (Washington, D. C.: Bureau of National Affairs, Inc., 19*+6) , p. 26*4-2. Since it is not our purpose here, to examine projeeted ideas for labor tribunals, but rather to look back at the results of systems that have already functioned, we do not propose to pass judgment on the possible success each of these two interesting projects might have if put into effect. However, it might be said that the survey of other national courts may throw some light on what can be expected. 30 of arbitration processes to see what their experience, was with precedent-formation, .and..to. judge what may be expected in the future. In these chapters, we will consider and compare the viewpoints of arbitrators and those who have studied the development of the arbitration process on both sides of the question of the value and. practicability of precedents and principles within each type of system. CHAPTER III VIEWPOINTS ON THE DEVELOPMENT OP PR3ENEIELBS AND PRECEDENTS UNDER NATIONAL1 SYSTEMS OF ARBITRATION I. PURPOSE OP THE CHAPTER This chapter endeavors to survey briefly the broad field of national systems of arbitration. Our object is not to determine the merits of these systems, but rather to examine them in. connection with their precedent-making poten tialities and their results in the development of effective principles. These forms of arbitration more than any other, by their inherent nature may be expected to throw some light on the question. So, although our major interest is in volun tary private arbitration systems, it was thought desirable to preface our consideration of these with a short survey of some systems of national arbitration. At the outset, the.terms voluntary and compulsory arbitration are distinguished. The major experiment with outright compulsory arbitration within.the United States— the Kansas Industrial Court— is then merely noted in passing, since it had little opportunity to function effectively or 1 For the purposes of this study, a national arbitra tion system refers to one where a national government takes an active, and often controlling part in the administration and operation of the arbitration machinery. 31 32 over a significant period. The Australian Court of Conciliation and Arbitration is next considered, representing, an experiment in compulsory arbitration, and is discussed in some detail. Enough back ground is supplied as to its purpose and functioning, to make comprehensible the evaluation of the court*s effect on the establishment and use of precedents. Excerpts from the major authorities are cited to assist in measuring the relative success of the court in ...this regard. A summary concludes this portion of the chapter. The British Industrial Court, established by the Whitley Committee, is next considered as an example of a voluntary arbitration tribunal on a national scale. Here again the same procedure is adhered to. Brief background information precedes an examination of. the .pertinent conclu sions made on the court's first decade of existence by Dr. Mary Rankin and Dr. Dueksoo Chang. Two significant national arbitration agencies of the United States are then examined: one a temporary war tri bunal , no longer functioning, which covered, all-industries 5 the other, a statutory arbitration body, still in existence, which has always operated in a single industry. The National War Labor Board is the first pre sented, and again sufficient background, is provided to permit the understanding of the subsequent discussion of the basis on 33 which the board developed its principles and precedents dur ing its lifetime. Excerpts from statements of its public members are used to indicate the philosophy and policy of the board in the development of these principles. A summary of the board*s influence in industrial relations by way of the principles it developed concludes this section of the^chapter. The National-Railroad Adjustment Board is then surveyed in its relation to the development of precedents. Again back ground is provided to facilitate understanding of the opera tion and functioning of the Adjustment Board, and the effec tiveness of the board on the establishment of precedents in its own industry is evaluated. The chapter concludes with a general summary of the effects of national systems of arbitration on the development of principles and precedents. It is hoped that these histori cal surveys, though cursory, may afford some little insight into the effectiveness of the various systems so far as this inquiry is concerned. To do real justice to these systems it would be necessary to devote much more space to each of them. References to more complete studies on their functioning and development are made throughout the chapter to compensate for the incomplete nature of their treatment here. Definition of terms. Submission of a labor dispute to an arbitrator may be either on a compulsory or voluntary basis. If the disputants of their own free will agree to submit their 3^ dispute to an impartial third party and to accept his decision as final and. binding, the procedure is considered to be volun tary arbitration. However, if the parties to the labor dispute are com pelled by statute or required, by governmental authority to submit their case to a third party whose award must be accepted, or a penalty imposed, the procedure is known as compulsory arbitration. XI. SECTION A. COMPULSORY ARBITRATION AND ITS EFFECT ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS In the United States there is much sentiment against 2 compulsory arbitration. The one major effort in that direc tion (although not a national one) was the Kansas Industrial Court, which though technically stillon the books, was, for all practical purposes, declared unconstitutional by the U. S. Supreme Court in 1923 and again in 1925.^ Therefore, 2 There are numerous studies on this subject. For two recent summaries of the opinions of many representatives of industry, labor and.the government on compulsory arbitration in the United States sees Statement by Secretary of Labor L. B. Schwellenbach, before the. House Committee on Education and Labor, Tuesday, March 11, 19*+7* in connection,with legis lation, especially pp. k-5-56, (mimeographed); also National Association of Manufacturers, Compulsory Arbitration, Appen dices A to E, inclusive, (mimeographed; n.d.); and Teller, 4 Labor Policy for America (New Yorks Baker, Voorhis & Co., 19^)7 PP. 2^6-250. 3 For review of the court, sees Domenico Gagliardo, The Kansas Industrial Courts, An Experiment in Compulsory Arbitration (Lawrence. Kansas: University of Kansas, 19^1), especially pp. 23l f-25l +. 35 the court had a life of approximately five years in all. More long-standing experiments, and, perhaps more successful ones, in that sense, have been operating in New Zealand and Australia since the early part of the twentieth, century. There are others as well. But for the purposes of our discussion a brief survey of the results of. one of these courts should be sufficient. 1. The Australian Court of Conciliation and Arbitration— Background The Australian,federal system, of compulsory arbitra tion was created in 190*f, and set up a Commonwealth.Court of Conciliation and Arbitration. The Court was given authority to attempt mediation in.any. dispute coming, before it. If mediation efforts failed the court then had the authority to arbitrate the dispute. In a review of the court's activities over fourteen years, the former president of,the.court, who retired in 1 9 2 2, explained the compulsory aspects of the tribunal as follows; Compulsion may be applied at either of two points— compulsion to submit to arbitration before strike, and compulsion to obey the award. . * . Under the Australian Act, both kinds of compulsion are applicable, and no voices, so far as I know are raised, against either. . . . Under the Act. the first duty of the Court is to try to get agreement, to award. The ideal of the Court is to get such a regulation as the parties ought to put in a collective agreement; and compulsion means merely that as to claims onwhich the parties cannot agree, or as to which some of the.parties will..not agree, the 36 Court can make an award* Very often, the mere fact that the Court has a power of compulsion, in reserve impels the parties to find a line of agreement; and reasonable employers are more , willing to make con cessions when they feel that their competitors are to be bound by the same terms * A decision of the Court of Conciliation, and. Arbitration is final and. binding,for a period of five years, unless other wise stipulated. Penalties are provided to insure the observ ance of the awards. Fines may be imposed for non-compliance of either employers or labor organizations. The Court has all the judicial powers commonly exer cised by most courts of law and equity. Appeals may be taken to the higher Court of Australia for review under certain con ditions; but, in general, the decision rendered by the Arbi tration Court in the settlement of a labor dispute is equiva- 5 lent to a law of the commonwealth. 2. The Courts Effect on the Development of Principles and Precedents There are, of course, both sympathetic and critical Henry Bournes Higgins, A New Province.for Law and Order: Being a Review.by Its hate President for Fourteen Years, of the Australian Court of Conciliation and Arbitra tion (London: Constable & Company, Ltd.. 1922), p. 108. See also pp. 152-15^ for limits of Court's compulsion. ^ Gordon S. Watkins and Paul A. Dodd, Labor. Problems (New York: Crowell Publishing Company, 19-kO), pp. 855-858. 37 points of view on the achievements of the Court in this regard. And it is of considerable interest in this study to briefly summarize at least two of these reactions. While both reviews selected are in sympathy with the major purposes of the Court, the second study includes several basic criticisms. First we shall consider the evaluation of Justice Higgins, the former President of the Court, who is generally quite favor ably disposed toward the Court and its accomplishments though acknowledging some of the handicaps under which the Court 6 operated. Of the Court's purposes Justice Higgins states: Where two great bodies of men differ and will not yield one to the other, and yet_do not want to resort to force, there is no device that I know better than that of the impartial arbitrator* This the Commonwealth Act gives.7 Ibid,. p, 151. The author states: "Inasmuch as I am now relieved of the responsibility for the further doings of the Commonwealth Court, I feel that I may now speak more freely than as President; and the public, of.Australia are entitled to know my opinions and to attribute such value to them as they think fit. I should like it to be distinctly understood that my resignation is not in any way due to any lack of faith in the utility of the Court to the public. I say deliberately, and after much thought, that, in my opinion, the system of con ciliation and arbitration under the Commonwealth Act is, in essence, sound and beneficial to the community; and that with proper amendments • • • and if the Government and Parliament act with common sense, it can be made to yield even richer results." His criticisms and recommendations were embodied in a statement on pp. 1 7 2-1 7 6. in which he deplores the govern ment interference as threatening to undermine the arbitration court. This same criticism.is made by Foenander,_ as will be discussed on p. 7 Ibid., p. 152 38 Justice Higgins has much to say throughout his review on the Court’s effectiveness in developing principles which (as will also be shown to apply.in permanent voluntary arbi tration) operates toward standardization and.automatic settle ment of disputes, making arbitration unnecessary in many cases. The following excerpts from various sections of Justice Higgins* review will provide a brief summary of some of his conclusions on the matters It used to be said dogmatically that tribunals for industrial disputes were absurd and impracticable, because there-, would be no principles.to guide the tribunals, L0J A Court of Law has to obey Acts of Parliament or the Common Law, but what principle was an industrial tribunal to obey? ... Well, the experiment has been tried, and principles and standards have stood many a test, have in the main become embedded firmly in the nation*s life and activities# Prom the nature of the ease, the awards— or collective agreements made under the influence of the Court— operate more as a restraint on employers than on employees. It is the workers who usually take the initiative, seeking what they assert to be right against might.I*J The contract of employment, if not regulated, is dictated by the stronger party— usually the employer. The result is that the employees press more and more into the Court, form more and more federated unions, with the object of getting the Court’s assistance. 10 o ° Note in a later section of this chapter a discussion of the same question which arose at the time the National War Labor Board was set up, infra, pp. 62 et. sag. ^ Cf. labor's attitude under a voluntary national sys tem, infra, p. 53; under pd hoc arbitration, infra. pp. 115 et Sfias also see p. Foenander*s comments. 10 Higgins, op. pit., pp. lM-5-1^6. 39 In an earlier section of his review, Justice Higgins had made the point that employers also sought the assistance of the Court quite willingly for the following reasons Even employers are at last beginning to recognize the advantages derived from the existence of an impartial tribunal, such as the Court, so.far as it reduces to system and order the conditions under which hum^n jLife can be used for the purpose of indus- Frequently— more frequently than ever before, and as to other conditions as well as wages— the union and the employers, after a study of the system adopted by the Court in analogous cases, make an agreement without any hearing. . . . It is also quite common now for the parties to ask the decision or guidance of the Court on a few main subjects in dispute, and then to agree as to all the other items— even hun dreds of items— in the light of the Court's findings, anticipating the application of the Court’s princi ples.^ Thus in time, the Court was to have as much usefulness as an agency of conciliation as of arbitration by reason of the precedents and.principles which came to be accepted standards. This is stated by Justice Higgins, as follows: But sometimes the agreement is made without refer ence to any specific dispute so as to provide an Gf• attitude of U.S. employers under private volun tary hoc arbitration, who seem more agreeable than unions to the idea and use of precedents. Infra, pp. 119* ©t. sqq. Higgins, og. cit.T pp. 90-91* Also c£. the way this works under permanent voluntary systems of private arbi tration in the United States, our Chapter IV, infra, pp. 8*t e.t..3qq. ^ However, cf•, Foenander's criticism, infra, p. ^-3* bo automatic adjustment of wages on the basis of the Statistician's figures and of the Court's practice. Agreements are made even as to hours and conditions other than.wages in the light of previous pronounce ments of the Court* Moreover, when timework rates are settled by the Court, the parties seem to be able to settle piecework rates, taking the timework wages as the. basis, L- W’ J Some persons, seeing only what the Court awards, have the notion that the Court's proceedings are confined to compulsory awards, resisted awards. The truth is that in con sequence of the Court's settled standards there is now more of agreement than of compulsory order, more of conciliation, than of arbitration.- * ■ ? That the Court strove for consistency and..system in its awards is testified to by Justice Higgins, as follows5 The awards must be consistent one with the other, or else comparisons breed unnecessary restlessness, discontent, industrial trouble. The advantages of system and consistency in the awards are increasingly apparent, as parties knowing the lines on which the Court acts and understanding its practice, often now make agreements in settlement of a dispute, in whole or in part without evidence or argument. The agreement, if certified by the President and filed in the Court is deemed to be an award.1® Prom these excerpts, it is evident that the Court did make some progress toward the establishment of a comprehen sive labor code, with developed standards or principles, which - * * To see how this works under private, permanent arbi tration by voluntary agreement, refer to Francis J. Haas, "Shop Collective Bargaining," (Doctor's dissertation. The Catholic University of America, Washington, D. C., 19221, especially pp. 1 2 6, 127» 1 3 1* Higgins, 0£. cit.,_n. 138. ^ Ibid.T p. *fl. However, cf. Foenander's criticism of Court in this respect, infra, p. *f 6 et sqq. came to be accepted as recognized precedents because of the endeavor to apply them consistently and because of the com pulsory element* As Millis and Montgomery have stated: “By laying down principles as it decided cases, the Court gradually evolved an extensive labor code, and one dominating throughout 17 the country in so far as wages were concerned.“ The second study selected for discussion on the Court*s effectiveness in the matter of precedents adds a number of critical observations, however, which merit attention. Foenander, in surveying the Court and its decisions, although also quite sympathetic with its purposes, expresses some ques tion as to the efficiency of the court*s administration as 17 Harry A. Millis and Royal E. Montgomery, Organized Labor (New York: McGraw-Hill Book Company, 19^5)> p. 812. For examples “The unskilled laborer should have a wage suffi cient to support a wife and three children— the 'standard family.This was first prescribed by the Court in the Harvester Case in 1907* The Court's point of view on the development of such principles is. perhaps, best illustrated by this statement of Justice Higgins: “Settled standards are impossible under what is misnamed 'freedom of contract,' when the employer is 'free* to give or not to give employment to the applicant, and the applicant is 'free' to choose between unfair or even dangerous conditions and an empty larder; and when employers disposed to be liberal are forced to adopt the illiberal ways of competitors. We have already standards set by Parliament, or under its legislation for ventilation, for safety from machinery, for sanitary arrangements. These standards are enforced whatever the effect on finances, on the profits of the undertaking or of industry as a whole. Stand ards, if properly established, prevent much industrial fric tion . . .“/The policies of the National War Labor Board closely paralleled the above approach on some issues. /Op. c it., p. h2 well as to its precedent-making effectiveness. Since this second study is much more recent, its obser vations are even more informative and-of considerable interest. According to Foenander, until the year 1926 the Federal Arbi- 18 tration system “worked tolerably well." He attributes this to a favorable economic situation. When conditions became tighter, irritation and restiveness in industrial relations reflected themselves in dissatisfaction with the Court * s operation. There were four main complaints expressed by the parties? 1. Because of the dual political structure in Australia, similar to that which prevails in_the United States, the Court was hampered in its effectiveness. The Arbitration Court was not empowered to make an award inconsistent with a State law, and a determination of any State Wages Board might constitute such a law. Each tribunal was establishing its own concrete standards in its awards. Unfortunately, hox^ever, even in similar matters there was no uniformity about these awards, since the Federal Court could not fix a lower minimum rate than a State Board, but if it fixed a higher minimum, it “was not necessarily inconsistent with the State legislation, 18 Orwell de R. Foenander, Towards Industrial Peace in Australia (Melbourne. Australia? Melbourne University Press, 1 9 3 7), P* 28. ^3 award or determination*" This absence of co-ordination created a temptation for the parties to "choose the award that best suited their pocket 19 or their convenience," and "caused uncertainty and confusion as to what standard was to be observed, inequality as between plants in overlapping industries, and operating under differ- 20 ent awards, and discontent and criticism." Foenander notes regretfully that • • .with reservations • • • these various tribunals in practice move along parallel but independent and unco-ordinated lines. Their trail, in consequence, is marked with evidence of duplication and overlapping of effort that at times is little short of the ludi crous. 2. The second complaint was that the Court tended to neglect its conciliation methods, which, according to the wording of the Act that set it up, ifens i t he- methods*., supposed to be stressed and encouraged$ hut the Court seemed to prefer 21 exercise of its compulsory powers. It is this point which is of special interest to our investigation. Foenander states: Due in a very large measure to the prominence of this compulsion, the Australian system had become enveloped and entangled in a network of legalism. The meaning and extent of the Federal industrial power granted under the Constitution, and the 19 Ibid.T p. 30. 20 Millis and Montgomery, op. cit.. p. 815. Gf. comments of Higgins, supraT p. 1+0. legislation in pursuance of that power, were the subject of constant judicial interpretation. It can be no exaggeration to say that the subsection in the Constitution-relating to the industrial power of the Commonwealth had caused more litiga tion than had. the remaining provisions of the Constitution in. their totality. I - 22- * Broad based on the sub-section and on the Act, there had, in fact, grown up or been created a new branch of law of formidable proportions which may reasonably aspire to the description, industrial, .jurisprudence. [Italics not in the original]. V But, apart from its magnitude, the code of indus trial regulation had become highly intricate. com plex and confusing. and because of the parlous and uncertain condition to which it had been reduced, it merited the severest stigma that can be placed upon a legal science. Mr. Justice Higgins, when President of the Court, complained that the ramifi cations of legalism were enmeshing him in *a Serbonian bog of technicalities.' A good deal of this class of criticism strikes. of course, at the very root of the Australian method. Itr involves, at least partially, the assumption that the settlement of industrial disputes is not, strictly speaking, judicial in character, but is . . . *a function that is really rather adminis trative than judicial.' 23 It certainly is difficult 22 Sir ¥. H. Moore writes* "Its greatest supporters never dreamed that the carefully restricted powers of the Commonwealth Parliament to make laws with respect to 'concilia tion and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State* would play in the political history and the legal con troversies of the first twenty-five years of the Commonwealth, and in the intensity of public interest that has been invoked, a greater part than the whole of the rest of the Constitution put together.* * • — Cambridge History of the. British. Empire T Vol. CPart 1, Australia), p. V 61 *, cited by Foenander, on. cit., p. 3 1, footnote 1 3. 23 It is interesting to note that Ludwig Teller, in the suggestion he makes for setting up a Labor Court is of the opinion that its functions should be administrative more than judicial. . A Labor Policy for Americay op. _ cit.. p. 206. *+5 to avoid the conclusion that the parties are pre judiced bv abundant legalism. Hearings of appli cations are a lengthy processT and it is no unusual spectacle for a matter to be actually before the Court for the greater part of a year before an adjustment or a modus vivendi is arrived at* A great strain is thereby imposed on the resources of the organizations. and the congestion in the Court's business results in long delays in reach ing the Court. The list of matters pending before the Court gives point to the complaint that organi zations are, for all intents and purposes, denied access to the court*2^ [Italics not in original]. Thus, we see in these complaints the negation of many of the reasons why parties seek to by-pass courts and settle their own disputes by way of voluntary and private arbitra tion* These same faults of heavy dockets, great technicali ties, et cetera, are evident in most of the national: - attempts at arbitration, as will be indicated in our discus sion to follow. 3* The third complaint is a familiar one. The Court was accused of most of the faults that appear to be inherent in arbitration, such as the understandable tendency toward compromise and the middle way (usually justified on some 2 5 basis); response to pressures; subjection to the battle of 2^ Foenander, op. cit., pp. 31-32. Cf. ante difficul- t ie s of the National Railroad Ad jus tment Board, with the.long delays in processing cases under the National War Labor Board, et cetera. For an excellent discussion of the reasons which may sometimes justify this, see Rankin's comments, infra, pp. 110- 111, footnote 12, This is especially the case with a Court whose initial function is conciliation if possible. However, cf. Chang's remarks on the effect of such compromise on the establishment of precedents, supra. p. 2 2, footnote 15* 1+6 strategy (in which each, side demands more than it really deems just or than it thinks it is likely to obtain, and the Court like any arbitrator, has to make a rough guess as to what would be a just claim). But in a court like that of the Australian system these faults were magnified, so to speak, because of its compulsory and centralized powers which make its decisions affect so many parties alien to the particular case. In addition, it was considered to suffer from the other faults described which individual arbitration manages to avoid. This is not to depreciate the work of the Court, but only to evaluate its effectiveness in relation to precedent- development more adequately. Foenander, throughout his study and in his conclusions as well, has much praise for the Court's progressiveness and elasticity. It strives to humanize the law of which it is the custodian. It endeavors to keep abreast of modern thought and the developments in. Industrial technique. Peculiarly responsive to sentiment and criticism, it quicklylinks up with changes in pub lic policy. 26 The author lists many more such complimentary comments. But his criticisms, as he has...stated, are concerned with the very 2 7 basis for setting up a court. bm The fourth cause for dissatisfaction.was one most 2^ Foenander. op. cit. T p. 2 1+6. 27 Ibid., p. 2b7. h7 Important to our investigation, since it involves the Court's consistency in its awards* Foenander acknowledges that the reason for this inconsistency may be that: The Court has a deep_sense of the value of industrial peace to the community, and if its awards and orders do not always conform with its own declared principles, or if at times they violate economic doctrines, the explanation may usually be found in its deep-seated anxiety gbout possible dislocation or conflict in industry? 5 Foenander, however, considers the Court's inconsistency with its own judgments to be a definite disadvantage since the elements of certainty and finality are lacking as a. result. In this connection, he states: It is sound in many ways that the highest tribunal in the land should not . . . be trammelled by other findings even of its own. But it is equally obvious that, perhaps particularly in respect to industrial matters where large bodies of men are concerned, the principle contains disadvantages. The Court's views, as reflected in its judgments, vary; this, of course, is much more likely as its personnel changes. Varia tions of decisions, however justifiable or warranted, may, nevertheless, have unfortunate reactions; even the possibility that accepted interpretations of the law may change, necessitating the amendment, or even termination, or operating.awards, may create condi- _ tions of dissatisfaction or instability in industry. ^ To sum up, then, although a compulsory arbitration court is. somewhat like a permanent arbitration system within an industry, in that there is the greatest possible combina tion of elements which are conducive to the development of 28 Ibid.. pp. 2b7-2h8. Also see p. x (General Introduc tion) • 29 Ibid., p. 221. b8 precedents and far-reaching principles, the national court is, at the same time, subject to the difficulties which go with huge size, centralization, and totality of administration. The Australian Court had the extra disadvantage of a clash of juris diction with the State Boards, III. SECTION B. VOLUNTARY NATIONAL ARBITRATION AND ITS EFFECT ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS 1. The Industrial Court of Great Britain— Background The Industrial Court of Great Britain was set up pur- 30 suant to a recommendation of the Whitley Committee. The reaction of employers and unions to the recommendation was quite favorable, and the standing arbitration tribunal which resulted is an example of arbitration on a national basis under government auspices, but of a non-compulsorv nature ^ The best discussions of this arbitration system of Great Britain ares Lord Amulree, Industrial Arbitration in Great Britain (Londons Oxford University, 1929), pp. 190-192; Ducksoo Chang, British Methods of Industrial Peace (Londons P. S. King & Son, 193*>)« Also of interest ares J. H, Richardson, Industrial. Relations in Great Britain (Studies and Reports, Series A, Industrial Relations) No* 36, International Labour Office, 1933. These are in addition to Dr. Rankin's study, which we will discuss in detail here. 1*9 31 nevertheless. The decisions of the Court were generally accepted voluntarily by the parties. Moral suasion was relied upon in securing compliance, although in a few cases, enforee- 32 ment was compelled hy law. Between 1919 and 1932 the Court handled 1,573 cases, involving wages, interpretation of its 33 own awards, and working conditions. In the first ten years of its existence, 1919 to 1929, it had issued 1,^5 of these decisions, of which most per tained to the establishment of wage levels. An analysis of 31 * these decisions was made by Mary Rankin, whose study is useful to this investigation because of the light It throws on the effectiveness of the Court in the development and use of principles or precedents. Although Dr. Rankin's study is concerned mainly with disputes over interests, since that was the bulk of the Court's concern, the observations she makes with regard to principles and precedents still, afford much Information for our purposes. / ihe Court was set up on a voluntary basis because "the experience of compulsory arbitration during the war period has shown that it is not a successful method of avoid ing disputes and in normal times it would undoubtedly prove even less successful." Chang, on. cit., p. 122. 32 Ibid., pp. 15*+-170. 33 Millis and Montgomery, op. cit..pp. 781-782. 31 * Mary T. Rankin, Arbitration Principles and the Industrial Court. An Analysis of Decisions. 1919-19.29 (Londons P. S. King & Son, Ltd., 193D* 50 2. The Effect of the Industrial Court on the Development of Principles and Precedents The Industrial Court attempted to establish and to follow sound principles in the determination of wages, not only for the purpose of satisfactory settlement of contro versies, but also to develop a consistent pattern which would 35 co-ordinate the wage rate structure. The minimum standards of the wage policy were set forth by the government, and the Court*s function was to interpret and.apply these standards but not to change them. According to Dr. Rankin, the Court misinterpreted its basic function. Instead of recognizing the principles already 36 established by the government or by the parties themselves, interpreting them and applying them to a given situation, the Court attempted to lay down new principles. It then sought to interpret new cases which arose in terms of these prin ciples; and in striving for consistency, it apparently lost ^5 The Whitley Committee conceived it to be the purpose of the Standing Courts of Arbitration to "issue uniform and well correlated wage awards,*1 [which] "could not be expected under the system of ad-hoc courts of arbitration which existed before the war." The Court would have the advantage of being in a position to provide "systematic treatment" because of the regular appeals made to it from different.trades. Cited in Chang, op. cit.. p. 103. ^ Infra, pp. 110-111, footnote 32. 51 sight of the necessity for relating these principles to ^7 general industrial and economic conditions. This striving for consistency and co-ordination of awards, while perhaps worthy in itself, she feels led the Court to apply principles that arose from one set of circumstances to cases with cir cumstances that were quite unrelated. As an illustration of how it worked she cites one example as follows: The Court ... holding the views it did, thought doubtless this was a golden opportunity, when the abnormal influences and the normal influences coin cided so pleasantly, for a strongly organized body of workers to enunciate its normal principle. But the fact remains that this principle, quite apart from its questionable validity, had little relevance to the case in question and to the award which the Court was called upon to make; and still less relevance to the decision which it did make. As an addendum to the award it might have had its usefulness as a warning •57 Dr. Rankin states: “The method of arbitration pur sued by Courts must be distinguished from the possibilities of the method itself. The discredit [to arbitration3 is not due, as is usually represented, to the absence of accepted prin ciples, but primarily to the failure on the part of such Courts to recognize that there are principles, and secondly, that their own province is not therefore to lay down other principles, but to interpret principles already laid down for them, either by law or resolution, or such principles not being involved, laid down by the parties themselves.1 * [ p. 170] D. Chang agrees with this and states: “Another point to note is that the Industrial Court is a judicial court constituted for the specific purpose of adjusting industrial disputes, and not for the purpose of framing industrial policies. Such policies may be determined either by the existing Imperial Parliament or by a new Industrial Parliament. Thus those who represent the actual forces operative in the industrial fields may settle industrial issues more directly and on a broader basis than that on which the decisions in_the Industrial Court are founded." On. cit.. p. 170. 52 of limitations, but its introduction into the tex ture of the award indicates a confusion of thought which runs through and vitiates the principle of all subsequent awards for which it was supposed to constitute a precedent. . . . It is not the validity of the terms of the decision which is questioned, but that of the principles with which the decision is surrounded or it might be said, decorated. . . . the subsequent extension of the terms of this decision to other cases in which the industry was not prosperous gives ground for think ing that the supposed normality of the principle was rather a triumphant excuse for a rise in wages in the particular case than_the constituent of a principle the Implications of which the Court had thought out and felt Itself prepared consistently to apply. A scrutiny of subsequent awards arising [therefrom ] . . . tends toward the conclusion that it was mainly the general feeling of optimism that prevailed in trade in 1920 that was in fact influ encing a Court, not unaccustomed to the easy methods of war finance, in favour of a general rise in wages. The Industrial Court was a voluntary tribunal; it could not enforce any general principles outside those laid down by the Government, because the parties would not neees- 39 sarily accept them. Dr. Bankin states: This view of the limited powers of the Industrial Court on the matter of principles has an important bearing on the question of precedent and on the possible formation of a body of industrial case law. o o Ibid.. pp. ^3-^-3. For understanding of the points which she makes in this and subsequent excerpts, it is almost necessary to refer to the surrounding text of her observations. Since these references are highly integrated and quite lengthy it is impossible to include them in our discussion. See also comment of D. Chang, supra. p. 22, footnote 15. 39 See also Chang*s comments, op. cit.T p. 170. 53 It means that the decisions of such a Court can only form precedents for other cases in so far as the major principles remain unchanged and are in fact principles accepted at any time by the con tending parties.4^ This, she considers, may mean that the more progressive ele ments of labor would be unlikely to seek the assistance of the Court, since, as Lord Amulree has indicated? The Court is indeed in a position similar to that of the Courts of Justice which administer the Common law. The Common law is organic; it undergoes change and at any time bears a relationship to current moral and ethical opinion. It must, however, move in the rear rather than in the van or reform. Its function is rather to peg down and make secure gains which have been won in the march of progress and not itself to lead the advance. The judges who apply and admin ister the law do so consistently with this view, and however advanced and progressive may be their opinions in private, on the bench they must see that they do not go beyond the point reached by the general body of ordinary people.4-1 Bankin, op. cit., p. 12. Thus employers who were convinced that no increase in wages was possible for their firms, or that a certain definite reductionwaas unavoidable, would not voluntarily go before an Arbitration Court. Or they ©tun, without illegality, ignore an adverse decision and come to some more practicable agreement with the workers themselves. ' l!he general effect,whs to discredit the method of arbitration itself, [(p. 1701 Lord Amulree, ojd. cit., p. 186. See also Allen, op. cit.. p. 30*f, who states: "The handicap of case law is its rigidity and the time lag from which it suffers in relation to changing social conditions." Also Teller, A Labor Policy for'America, op. cit.. p. 2k, who states: "The pace of change in the industrial economy . . . has been too rapid for courts, unguided by any worked-out labor policy and depending wholly upon private case law, to evolve sufficiently broad and elastic standards of policy. And judges preoccupied by such relatively stable fields as real property law and negotiable instruments law have often been unable to split their judicial personality sufficiently to deal with the turbulent clash of values found in labor matters* Dr. Rankin considers that rigidity which comes with the striving for definite co-ordination of awards and prece dents (i<diich she regards as a danger rather than as an ideal) is inevitable unless the Court “confines itself to the pro vince of interpretation” alone. This rigidity would not take place if the validity of each decision depended upon inter pretation in relation to prevailing conditions. . . . it can only happen when it is conceived to arise out of previous decisions and when one decision is attempted to be related to another instead of being confined to itself. . . . No one set of parties can determine the decision to be applied to others and each case can in fact be considered on its merits and in relation to the principles on which the parties are agreed. This will give all the consistency which is at any time required and the inconsistency with that time which another time demands* 2 ^ ’ Thus Dr. Bankin*s study is enlightening on the hazards of attempting to apply arbitration principles under varying 1+2 » Rankin, oj>. cit., pp. 173-17*+*. It should be recalled, however, tha£.the Court was striving to perform its especially- designated function-— that of a wage co-ordinating authority. Chang considers that in many respects, there was not enough consistency. He stated: “We may fairly say that in the par ticular cases brought before it, the Industrial Court has failed to apply its general principles with the consistency required for the successful discharge of its function as a wage co-ordinating authority.” [p. 166]. And later he states; “From a psychological point of view • . • the trouble is that when they are in a strong position, the industrial parties may feel that, since arbitration so often ends in compromise or the splitting of differences, they might as well take the chance of an actual trial of strength rather than resort to argument before a court of arbitration.in order to gain all their points.** [p. 68]. 55 conditions, over industry lines, and without compulsory obli gation on the part of the parties to make use of the nationally cpe iratddfacilities* It is^ interesting to note in this latter connection that the Australian Court had originally contained a clause which provided for voluntary arbitration* Under it employees and employers were permitted to submit any indus trial matter to a judge or conciliation commissioner of their own choosing* The result of any such voluntary arbitration proceeding would not be enforceable at law, for the Court's power was only over a “dispute.*1 But apparently “the clause was distasteful to employers and, employees alike, and it was ko accordingly withdrawn*1 1 J If the experience of the British Industrial Court is indicative of the difficulties of establishing principles even under government auspices it seems unlikely that prece dents can be satisfactorily developed for purposes of con sistent application through the normal process of continuous voluntary acceptance by the parties, without the help of such national power* IV. SECTION G.*JYtO NATIONAL SYSTEMS OF ARBITRATION IN THE UNITED STATES AND THEIR EFFECT ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS 1, The National War Labor Board— Background The nearest approach to a national arbitration court **3 Foenander, gfi. cit. T p. *+0. 56 covering all industries in the United States was the War Labor Board of World War II. The Board was established* by the Presi dent on January 12., 19^2. It was tripartite in composition, with twelve men as its tribunal, four representing the public, four representing labor, and four representing employers. It was considered to be a kind of Supreme Court to dispose finally of all labor disputes affecting the war effort. It functioned as follows: If a dispute between labor and management could not be settled by collective bargaining, the U. S. Conciliation Service was first called in to see if the problem could be settled by the parties themselves with this slight additional.assistance. Many cases were disposed of at this step, and the Board encouraged parties in such action, not only, to avoid swamping the Board with cases, but because it was the wish of all the parties (labor, management, and the public) that as many cases as possible be settled “by mutual agreements voluntarily arrived at.*' However, if the Conciliation Service was unable to settle a case, it was then referred to the War Labor Board by the Secretary of Labor. When it reached the Board, the case was again referred to the mediation process under Board aus pices. In some_cases a staff mediator went directly out into the field and attempted to settle the case there. In other situations the ease went to the regional office of the Board for appearance before a mediation panel. Panel members then 57 listened to the contentions of both sides and attempted to help the parties work out an amicable settlement* At this level, too, a great proportion of the cases were settled. Those cases which could not be settled with the help of mediation panels were carried further up. The panel would first offer to work out a form of voluntary arbitration. If the parties refused this, the dispute would go to the National Board office in Washington for final decision. The mediation panel would draw up its recommendations for settlement of the dispute on the basis of its local familiarity with the issues, facts, and arguments. And in most cases, especially if the panel*s recommendation was unanimous, as it often was, the National Board would merely review the case and adopt the panel recommendations. However, in cases where there was some disagreement between the panel members, and where fur ther information was desired by the Board, a public hearing was held in order to give the employer and union a chance to present arguments for and against the recommendations. Once issued, there was no further appeal from the Board*s direc tive order. In effect then, the Board served as a “national umpire for all labor disputes in the field of war production”; and as George Taylor, its Vice-chairman (and later Chairman) stated: . . . The umpire was selected in the democratic American way— by agreement between labor and manage ment. . . • The umpire functions in accordance with 58 the best of our traditions of justice and fair play. The three great groups affected by these decisions— labor, industry and the public— par- tieipate equally in these decisions.4^ 2. The Effect of the War Labor Board on the Development of Principles and Precedents In the short three and a half years of its life, the 1+5 Board handled approximately 20,000 dispute cases, and its decisions built up a body of precedents which became a species of common law of labor relations. The principles established will undoubtedly influence industrial relations for decades, U-7 much as did the work of the first War Labor Board, whether directly through eventual conversion into law, or indirectly through inclusion in innumerable contracts, which, when the contracts are redrafted, may include the reaffirmed principles. ■'T.hus, both by continuous acceptance of the parties and through the interpretations of arbitrators, the principles may endure, , ) i George W. Taylor, The Role of Organized Labor in Winning the War (Address delivered before the Pennsylvania Federation of Labor, Scranton, Pennsylvania, May 5> 19^2), p. k-, **5 George W. Taylor, “The Arbitration of Labor Disputes,*1 The Arbitration Journal. Vol. 1, No. k (Winter 19^6), p. h-12. W Ibid.. p. 1*13. ^ The War Labor Board as a , Judicial Agency (Report on a speech by Wayne L. Morse, before the International Juridical Association, New York City, March 21, 19**2), Vol. 10, Labor Relations Reference Manual. p. 1277* The principles enunciated and applied again and again in numerous cases are too numerous and have too many ramifica tions to list here; but a few examples ares the requirement of equal pay for equal work, regardless of race, color, creed or sex; the development of concepts of union responsibility in connection with the application, withholding or withdrawal of maintenance of membership clauses; the recognition of arbi tration as a necessary final step in adequate grievance pro cedure, et cetera* Although the controversy still persists as to whether the National War Labor Board was a compulsory or voluntary M-8 tribunal, we are not much concerned with that here, except as it may possibly affect the principles developed by it. Braun explains the dual nature of the Board, and calls it a "special case of compulsory arbitration, in contrast to compulsory arbitration systems in other countries," because kg For the argument that the Board was a compulsory arbitration body, see Updegraff and.McCoy, Arbitration of Labor Disputes (Chicago: Commerce Clearing House, Inc*, 19^), pp. 9-10; and Lapp, How to Handle Labor Grievances (Deep River, Connecticut: National Foreman*s Institute, Inc., 19^5)> p. 21. For the negative of this, see George W. Taylor, "Voluntarism in War Time Labor Relations," General Magazine and Historical Chronicle. University of Pennsylvania. Vol. XLVIII, No. Ill (Spring, 19^6), pp. 145^15^; and, by the same author, The Arbitration of Labor Disputes, op. cit.. pp. ^09-^1^. Also see Probe of WLB: Committee Report r January 31, 19M+ (mimeographed), especially pages 6 and 13* **9 Kurt Braun, The Settlement of Industrial Disputes (Philadelphia: The Blakiston Company, 19*+4v , pp. 212-213• It is interesting to note that after V-J Day, the Board gradually although the procedure before the Board and its decisions were compulsory upon the parties, it was established on a voluntary basis in a manner very similar to the creation of arbitration machinery in collective bargaining agreements. However, indus try and labor had voluntarily renounced economic warfare for the duration and had agreed to submit their disputes to this special tribunal set up for the purpose of settling their disputes. As Braun goes on to states • • • In carrying out this resolution, it was indis pensable to give the new board the power to render and to make its procedures arid decisions All the public members were in agreement that the set up was not free of compulsion, as exemplified in the follow ing statement by William H, Davis, Chairman of the Boards There is no escaping the fact that this frame work of collective bargaining erected on the basic no-strike agreement contains an element of forced acceptance. It is in substance arbitration, [But] the framework that defines the rights and obliga tions of the parties is imposed by the decisions of transformed itself into a strictly voluntary arbitration tri bunal. It did this by accepting only those dispute cases where the parties had agreed in advance on each specific case to accept the Board*s orders as final and binding. Even dur ing its active operation prior to V-J day (as has already been indicated), the Board deprecated the referral to it of disputes which the parties could possibly settle themselves, recommending instead arbitrators or encouraging the parties to set up their own arbitration process. (Continued) 6l the Board# To that extent the war procedure is a reversal of the normal peace time procedure# In peace time the limiting framework is established by agreement and arbitration is. confined to impartial decision within that framework. Now that part of the framework,on which the parties cannot agree is imposed by tripartite arbitral decisions and collec tive bargaining is limited by the policies of the Board. To that degree the exigencies of the war substitute for the creative processes of persuasion a substantial element of compulsion# This, in my opinion, can be justified only as an essential pro ductive measure during the war#^. I think it should not be continued after the war.'1 However, Vice-Chairman George Taylor expressed his opinion that the tripartite nature of the Board preserved the voluntary character of the decisions, and at the same time substituted 1 1 for the lack of guiding principles and points- of-reference1 1 which was the situation when the Board came into being. Dr. Taylor stated his point of view as follows: • • • the tripartite composition constituted a sub stantial assurance that voluntarism would be the basis of disputes settlement in wartime. Criteria for deciding issues had to be developed on a case- by-case basis after the dispute was submitted to arbitration. Not only did representatives of the parties participate with public members of the Board in working out such criteria, but they pos sessed the right to withdraw from the Board and thus force a change of policy. The continued existence of the tripartite arbitration board was an evidence of the acquiesence, if not the approval of labor and management in the criteria used in determining cases even_ though they were developed William H. Davis.. Final Determination of Labor Bis outes (Address before the American Arbitration Association, New York, November 23, 19^2), cited in 11 LBRM 2539. 62 erp after the submission to arbitration and not before. This development of principles and criteria by drawing on the collective experience of labor and management in the United States through their representation on the Board is especially interesting to this study because it bears out the statement made by Slichter that a system of industrial-juris prudence is emerging through the processes of collective bar- 53 gaining. With no time or opportunity to stop the game and develop precise rules, since determination of immediate dis putes could not be suspended for weeks or months while the criteria were being discussed and set up, the Board had to develop the rules of the game while the game was in process. Here was the common law approach in action. And the principles, whieh were accordingly developed, were those born.of collective bargaining processes— the formulating industrial.jurisprudence 52 y George W. Taylor, The Arbitration of Labor Disputes. op. cit.. p. Wfe. See also Teller, 4 Labor Policy for America. op. cit., pp. 29-30, who states: The refusal . . . of the War Labor Board in the early days of its existence to formulate general rules in advance of greater experience with wartime labor problems was fully in line with the American tradition. Persistence in that refusal, despite occasional carping, suc ceeded partly at least because of the widely held belief in worked-out rules in preference to finely reasoned general con ceptions. The proposed code is accordingly built around the idea that, given broad codification more or less general depending upon the given labor issue, the accretion of cases reflecting experience is a surer basis for an acceptable labor policy than a minutely conjectured code of inflexible rules and principles.1 1 ^ Supra. pp. 12-13. 63 of which Slichter speaks. Lloyd K. Garrison, another public member of the Board, indicates this as follows: . . . the fact is that, apart from the Board*s pioneering work in the presumably temporary field of wage stabilization, the Board has turned out relatively little that; is new. On the contrary, it has relied upon industrial experience for the source of its rulings, and has turned to the best practices of employers and unions, developed through years of collective bargaining and of trial and error as guides for the solution of present-day controver sies. In this selective process, aided greatly by the first-hand knowledge of the industry and labor members of the Board, as well as by the contentions and agreements of employers and unions who have appeared before us, certain precedents set up by collective bargaining have been particularly relied upon, certain methods of settlement tested by experi ence have been particularly singled out for use, and certain trends in collective relationships have been^K given a particular impetus and a more specific form.5 New direction and emphasis to processes and precedents already long established, rather than the invention of new rules and techniques— this, according to Mr. Garrison, was the policy of the Board.55 To those critics who complained that the Board should not be allowed to develop the principles which were to apply in the settlement of disputes, but should have principles laid Lloyd-K*‘Garrison,: “Trends and Principles Established in Wartime Bar gaining,1 1 Management1 s Stake, in Collective Bar gaining (Personnel Series Number 81$ New York; American Man agement Association, 191 +1 +), P* 20. 55 Supra, p. 51 (footnote 37) and p. 52. Dr. Rankin seems to consider that it was this pragmatic approach that was lacking in the methods of the English Industrial Court. 6*f down for it by some higher authority such as the President or Congress, Senator Wayne Morse, then a Public Member of the Board, predicted the development which we have described above, in his statement made early in the Board*s history* I am satisfied that, if the Board is permitted to function, in a period of a few months it will build up a record of sound principles which will guide labor and employers to an orderly and peaceful settlement of their differences . . . in accordance with the spirit and^intent of the executive order creating the Board.-”5 He believed that the Board "should not be hamstrung by inflex ible policies," since it had already made good progress in establishing rules by means of precedents, at the same time preserving flexibility "in the interests of fair dealing and common sense solutions." i)r. Taylor supported this point of view four years later, pointing out that when rigid principles were set forth by Congress, such as those of wage stabilization, the Board found it very difficult to operate, as well as to achieve its objective, whieh_was "primarily the consideration of claims for equity and the resolution of labor disputes in such a manner that disputants would . . .be convinced they had received equitable treatment. *>6 J Wayne Morse, on. cit., p. 193* 57 George W. Taylor, "Voluntarism in War-time Labor Relations," on. cit. T t?. 150. 65 3* Summary of the Board’s Effect on the Development of Principles and Precedents During its lifetime, the principles developed by the Board, as described above, not only affected the disputants whose cases were processed by the Board, but also served as standards for parties who wished to avoid an appearance before the Board, Determination of what their likely settlement would be by way of the principles already enunciated by the Board permitted faster working out of their mutual problems 58 by themselves as it provided a kind of short-cut. Arbitra tors, too, were naturally making constant reference to the Board’s decisions. As was noted in the introductory chapter, the great number of decisions published by the Board, together with its stress on the inclusion of arbitration provisions 59 in new contracts, provided the impetus to the collection, classification, and publication of arbitration awards. With means available for keeping abreast of developments in the field, “few arbitrators would refuse to inform themselves, *58 Cf. supra, p, 39; infra, p. 85 et sag. 59 The net result of the Board’s activities was that directly or indirectly thousands of contracts which prior to the war contained no arbitration provisions were modified to the extent that arbitration was almost universally applied. In this connection, see War Labor Board, Research.and Statis tics Report Number 19, entitled “Arbitration,1 ’ issued on January 27, 19^• 66 if they had the opportunity, respecting a prior award in a parallel dispute. Few also would disregard the result if it 60 appeared to them to be soundly based and logically reasoned.1 1 Naturally, this would tend to greatly enlarge the influ ence of the Board's principles. And even today reference to these principles can be found in numerous arbitration awards. Although the principles are no longer binding upon the parties, directly or indirectly they still have much force and persua sive effect. l+. Industrial Arbitration under the Railway Labor Act Another experiment in national arbitration (if it can any longer be called an experiment, since it has been func tioning steadily since 1918) is the National_Railroad Adjust ment Board which deserves attention here because it would appear to be in a good position to develop precedents. That it has not done so with much effectiveness will be shown later. The railroad industry is one of the few industries in which labor disputes procedures are set forth under a federal statute. Some authorities consider the procedures of the National Railroad Adjustment Board to be an example of com pulsory arbitration in the United States, since either party ^ I Labor Arbitration Reports. I and II (Bureau of National Affairs, Inc., Washington, D. C., 19^6). ^ For an example, see infra, p. 118. without the consent of the other may bring a question to arbi tration before the Adjustment Board, and its decisions are final, binding, and enforceable by the federal courts except in the case of cash awards. However, it might be more correct to describe the board as semi-compulsory, since the Railway Labor Act compels neither party to resort to the Board, but only to answer the charges of the party ■which does bring the matter before the Board. This is to remove the possibility of blocking an appeal by the failure of either party to do its part. Thus, either or both parties may submit the case. More over, the Act requires exhaustion of local effort before appeal may be made to the Board, much as we have seen to be the case with the War Labor Board. The Railway Labor Act represents the accumulation of over half a century of experience in railway labor legislation. Well established procedures for the handling of grievances of individual employees were set up quite early in this industry. As early as 1880 and 1890 protection against unjust discipline and discharge, and the safeguarding of seniority were included in railway labor contracts. However, it was not until the first World War, when the government took over the operation of the railroads, that a national or regional system of grievance adjustment was established. Each railroad had its own method of dealing with complaints, and arbitration was occasional rather than usual. In 1918 the Railroad 68 Administration established four national adjustment boards to which grievances could be appealed, if not settled by a rail way system’s own adjustment machinery* The composition of these boards was bipartite with an equal number of labor and carrier members, but with no neutral member. ■When the railroads were returned to private ownership, the adjustment boards were continued in force. Some companies and unions rarely found it necessary to appeal their cases to these Boards, settling most of their disputes locally. How ever, the Boards were there when local unions and company officials were unable to adjust grievances first on their own level, then by referring them to a general chairman of the unions and a designated set of company officials. When this second step failed, instead of arbitrating the dispute, appeal was made to the proper division of the National Railroad Adjustment Board. This is the method used to this day. The Board, officially established under the Transpor tation Act of 1920, consists of four divisions, each with an equal number of employee and carrier members. Impartial referees are called in when needed to break deadlocks. A hearing is scheduled after submission of the dispute. And if the case is jointly submitted, the claims of both sides are heard; if the submission is ex parte. the facts are given by the submitting party and the board notifies the opposing party of the filing of the claim and requests information on 69 its side of the dispute. Following the hearing, a case is considered in executive session and a decision issued. The awards are required to be in writing, with a copy to the parties; but it is not required that the summary and reason ing be set forth— merely the conclusions. However, the Second, Third, and Fourth divisions have established the practice of setting forth a statement of their grounds, while the First 62 Ctlvision usually only states its conclusion. All awards contain the submission and statement of claims of the parties, however; and if there is a dispute over interpretation, the division is expected to "interpret the award in the light of the dispute," upon request of either party.^ 5. Effect of the Operations of the National Railroad Adjustment Board on the Development of Principles and Precedents Even though the arbitration machinery in the railroad industry operates on a national scale and has been given a 62 This is one of the snags in the formation of useable precedents. See discussion of this later in the study, infra. pp. 88-89* ^ Based on John A. Lapp, How to Handle Labor Griev ances (Deep River, Connecticut: National Foremen’s Institute, Inc., 19^5)> pp. 1^9-16^. See also William H. Spencer, The National Railroad Adjustment. Board (Chicago: University of Chicago Press, 1938). For a relatively current discussion of the Railway Labor Act, see Otto S. Beyer, "The Railway Labor Act," Proceedings of the Academy of Political Science. Vol. XXII, No. 1 (May 1955), pp. 51-63* 70 semi-official position, the record would seem to indicate that no large body of precedents has as yet developed, John Lapp, who has arbitrated hundreds of disputes for the Railroad Adjustment Board, states that the thousands of issues before the Board have involved substantially different sets of facts, except on a few points. Thus: Even with the best of efforts a referee cannot establish a clear line of precedents in most of these cases. Referees and the board study the previous decisions for such information as they may derive from them, but the great bulk of the cases are decided on their own particular sets of facts. ^ Contracts in the railroad industry are among the most involved and lengthy in all collective bargaining, and the agreements sometimes extend over a hundred pages. With more than four thousand such-agreements, each containing innumer able rules and setting forth the employment conditions of over a million railroad workers, the variety of disputes between the unions and carriers are beyond counting. It was the general belief that with the. establishment of the Adjustment Boards, there would develop precedents which would not only contribute to the prompt settlement of disputes, but also to the elimination of many disputes in their early stages through the application of settled precedent. However, this “appears not be realized”; for, according to Lapp, jap. cit.. p. 175. 1 71 Professor Harry D. Wolf, Han interpretation in a given award frequently brings a large number of additional cases from other roads with a view to getting a similar interpretation. In consequence the dockets of the Board are far behind schedule, especially that of the First Division, -which regularly runs approximately three years behind schedule. This slow processing through top-heaviness, is, of course, not typical of this Board alone, but was shown to be 66 the case with most of the national systems described here. It causes serious doubts as to the practicability and advis ability of centralizing arbitration. V. SECTION D. SUMMARY OF FINDINGS ON NATIONAL. SYSTEMS\; . Despite the fact that gavernmantal arbitration systems with their semi-official status would be expected to produce definite trends in the direction of the codification of prin ciples or the establishment of a body of common law, and, at the very least, to show outstanding consistency in awards, the experience of the systems studied would seem to indicate otherwise, whether they are compulsory or voluntary. ^ Harry A. Millis. editor, How Collective Bargaining Workst A Survey of Experience in Leading American Industries (Kew York: fhe Twentieth Century Fund, ±9*+2), p. 36V. 66 See Foenander, supra. pp. **3-M+. 72 It is true that the decisions of these courts and agen cies serve to provide discernible standards by which, manage ment and labor may measure disputes and thus arrive at settlements without recourse to the court. It is also true that they often develop principles or application of prin ciples which are either so persuasive or acceptable that they automatically find a place in the developing body of indus trial jurisprudence. But the nationally-sponsored type of industrial court has many faults which, as Foenander has stated, may “strike at the very root” of this method of industrial settlement. The most commonly shared fault seems to be the tendency to become involved in "a network of legalism.” The result is inflexibility, inaction, complexity, confusion, and long, costly procedures. Consistency of decisions is difficult because of the infinite variety of disputes handled, economic 67 considerations over which the Court has no control, the differences in industries making it undesirable and often impractical to apply the same principle, and the paucity of 61 data as well as the problems of acquiring and compiling them. ^ Chang, op. cit., p. 169, states: “Wages in differ ent trades are variously affected by the unequal forces of the market and no effective means can be found to secure their co-ordination on a national basis unless the social needs of the country are interpreted and enforced by public authori ties under a social system of compulsory industrial regimen tation. “ 68 Foenander, oj). cit., pp. 250-252. 73 In addition to all these, there are often pressures upon such courts to promulgate principles in keeping with the particular interests which are powerful enough to exercise these pressures. Sometimes political groups seek to affect determinations. There also may be temporizing and some degree of compromising. Although this exists to an equal degree in private arbitration, the effect is not so widespread nor per manent. Employers and unions alike have made such complaints about the various industrial courts which we have examined; and whether valid or not, the total effect is to prejudice the parties, and cause by-passing of the court in favor of private arbitration, or more unhealthily, in favor of stronger 69 methods of settlement. Since flexibility and fluidity are basic tenets of arbitration, the rigidity of these systems tend to -undo what ever advantages might be gained through the co-ordination of councils and administration. The tendency to government settlement of industrial disputes on a national scale is 69 For as has been stated by Chang: HIt was.definitely proved that no amount of machinery, whatever its power, and however well devised, could prevent disputes if fundamental issues about which the workers cared greatly were either unsettled or settled only partially.” Chang, op. cit.. p. 118. And, as Teller has said in A Labor Policy for America, pp. cit.. p. 260: "Reliance upon compulsory arbitration may divert atten tion from these problems, with resulting periodic explosions requiring crisis legislation of one kina or another, to the detriment of gradual, orderly adjustment." almost always resisted by the parties as well as by arbitra tors for some of these very reasons. Similarly, this would appear to argue against the usefulness of any widespread attempts to codify precedents. That arbitration decisions can be used successfully within single industries, even those which have more than one plant, will be shown in the next chapter, which will consider private, voluntary arbitration under the permanent setup. CHAPTER IV VIEWPOINTS ON THE DEVELOPMENT OP PRINCIPLES AND PRECEDENTS UNDER "PERMANENT" SYSTEMS OF PRIVATE, VOLUNTARY ARBITRATION I. PURPOSE OF THE CHAPTER This chapter endeavors to survey the permanent types of private voluntary arbitration in the United States, with a view to determining from the reported experience of per manent arbitrators, from contract provisions, and from excerpts of actual decisions whether principles and precedents are developing within this form and what is their effective ness. The opinions __of students of the subject are presented on both sides of the issue. Prior to the discussion of pre cedent development, there is a general introductory section to provide background understanding of the permanent type of arbitration setup, to distinguish terms, et cetera. The chap ter closes with a summary of conclusions. II. GENERAL DISCUSSION Private voluntary arbitration has progressed enor mously in the last decade, both in frequency of use and in techniques. The influences have already been indicated; these are, briefly: a larger number of labor contracts due to greater acceptance of collective bargaining; wartime 75 76 introduction to the advantages of arbitration clauses as an alternative to strikes; and increasing public pressure for the settlement of disputes without stoppages, as the pinch is felt by citizens ever more dependent upon the products of large interrelated industries. Since companies and unions alike are opposed to govern mental interference except under emergency conditions, whether on a compulsory or a voluntary basis; mcet prefer to develop their own arbitration procedures within their particular plant or industry. The two major types of private arbitration settlement are temporary (or ad hoc) arbitration, and permanent arbitra tion (under an umpire or impartial chairman). Different con ditions and problems of the industry, the balance of power between a company and union, the size of the industry or plant, the experience of the parties in collective bargaining, et cetera, all enter into the choice of whether the arbitra tion will be on a temporary or a permanent basis. III. PERMANENT ARBITRATION— INTRODUCTION Permanent arbitration refers to the selection of an arbitrator for a given period of time rather than for a par ticular case. Permanent arbitrators are quite often utilized where there is a long history of collective bargaining or where 77 a contract covers multi-plant companies or large industries.^ This is not invariably true, however, for some smaller com panies may also find it desirable to call upon the services of a single individual for adjudication of all their arbitra tion cases. They accomplish this either by formally agreeing to accept one arbitrator or by actually writing his name into the contract, especially if the tenure of his office is to coincide with the life of the agreement. The advantages of this are fairly obvious. In due course, the arbitrator acquires a knowledge of the industry and its problems and an understanding of the parties that is impossible under the ad hoc arrangement. Thus his decisions are likely to be both sounder and more acceptable. The expenses, though initially high, may in the end be less than those of nd, hoc arbitration, since fewer arbitration hours are consumed in procedural discussion and in becoming acquainted with the setupr in the plant. There are other advantages as well that will come out in the discussion to follow. The terms generally used in reference to a perman ently selected third party are "umpire1 1 and "impartial 1 ^ See Appendix B of this study for statistics compiled from a survey prepared by the Industrial Relations Division of the United States Bureau of Labor Statistics in January, 19Mf, covering 1,25k agreements in fourteen important indus tries. 73 2 chairman.” Although these are used fairly interchangeably, the terms do have some distinction in original, meaning and sometimes in function. The “umpire” is intended to refer to an arbitrator who serves alone in making all arbitration decisions for the particular plant or industry. His position is quasi-judicial, and, in most eases, his functions are fairly limited, mainly those of interpretation and application of the contract on the basis of the presentation made by the parties in hearing. An interesting explanation of the duties of the General Motors-UAW umpire was presented by a member of management, and is worth reproducing here in part because it so explicitly states the limitations of the umpire*s jurisdic tion under this particular contract. It is also interesting to note that these limitations do not affect the "use of umpire decisions as precedents for future cases. This latter point will be discussed later in this chapter. 2 Studies of the Twentieth Century Fund indicate that in such industries as the men’s’ and women* s clothing and hosiery industries, where there is a long history of impartial settlement of grievances and where there are frequent wage issues, the third party jointly hired is most often referred to as the “impartial chairman,” and he is permitted wide lati tude. Most of these originally had boards of arbitration; some still do. In the more recently organized mass production industries, however, such as automobile, rubber, ship-building and meat-packing, the term “umpire” is ordinarily used, whether the arbitrator is selected on a temporary or permanent basis. Harry A. Millis, editor, o&. c^t.. pp. ^58-^60; 1 +07-1 t095 S. T. Williamson and Herbert Hams, Trends in Collective Bar gaining (New Yorks The Twentieth Century Fund, 19*+5) » PP* 124- 129. 79 The speaker stated: The powers of the Umpire are spelled out very carefully in our agreements with the Union, and to me this is extremely important. In so doing we feel many of the objections industry in general has had to such a system in the past are removed, [p. 8] The Umpire is not expected to know the answers to all the labor relations problems which arise in the plaints. His job is to interpret and apply the Agreement between the Corporation and the Union, where there is a dispute appealed to him for decision, [p. 3] The Umpire cannot add to, subtract from nor can he modify the Agreement. Even if the Umpire should find an error, it is not his job to change it in any way. He must apply the Agreement as he finds it • • • . If the Umpire runs across a situation not covered by Agreement. he must refer the matter back to the parties without decision. Cp. Other limitations are noted, but these will suffice to indicate the restricted powers of the umpire in General Motors. Although the "impartial chairman" sometimes also, serves alone, the term originally., as the name implies, referred to the neutral head of a board of three or five persons, -whose other members represented the parties. In many industries the individual serving as impartial chairman has much broader powers than those of an umpire. He, too, is limited in the decisions he makes to interpreting and applying the contract, but is, in a sense, a third party to the agreement. He is not o J H. T. Gierok, Arbitration in Industry (Address made April 10, 19*+6. mimeographed), pages as indicated in excerpts. A more generalized picture of the umpire's function was pro vided by William H. Davis, former Chairman of the National War Labor Board, as follows: 11. . • umpires merely apply the rules of the game as laid down by the particular company and 80 only required to decide disputes submitted to him but to assume general superintendence of the machinery for the adjudication of grievances and to take whatever measures may be necessary to make it work.4" If his powers are so designated, mediation, reprimand of the 5 parties for improperly carrying out decision, fines, sugges tions, and anticipation of future problems are all in order* This variation in granted authority is well brought out by Ralph T. Seward, recently-appointed Chairman of the Board of Conciliation and Arbitration of the Steel Industry, in an interview with a reporter from Modern Industry. Seward's 3 (Continued) union involved. The American people understand umpires, even if they don't approve of all their decisions* They expect the umpire's decision to be obeyed, even if occasionally some hothead tosses a bottle from the stands or a player shakes his fist under the umpire's nose. It works out the same way in labor relations* The umpire or arbitrator, as the case may be, hears the evidence and makes his ruling. The union or the company loses the decision, but production goes on.*' (Address before the Society for the Advancement of Management in New York, May 18, 19M+, mimeographed.) Mr. Davis is evidently referring to arbitrators in general as well as to the umpire specifically. Theodore W. Kheel. How to Arbitrate £ Labor Dispute (New York; Prentice-Hall, Inc., 19^0), p. 10. ^ For instance, this is the case in the ladies' garment industry. "Garment unions frequently exact assurance of man agement's good faith by requiring employers to post bonds or cash as security for 'faithful performance of this agreement* and from these deposits, fines may be assessed against viola tors by the industry's impartial chairmen or other arbitra tors." (Agreements with employers held by International Fur and Leather Workers Union tCIO) and International Ladies' Garment Workers Union (AFL) , cited in Williamson and Harris, op. cit., pp. 56-57*) 81 comments were based on his wide experience as permanent impar tial arbitrator for a number of different industries, includ ing General Motors, He suggested that in setting up plans for arbitration, companies and unions should: • • • give plenty of thought to the kind of inter pretation you want. You can get the kind that is rigidly legalistic and hands down rulings that are as binding as those of the U. S. Supreme Court, Or you can get sin arbitrator and a system designed more or less to fix things up on a common-sense basis. One big auto corporation so narrowly restricts and clearly defines the power of its permanent arbi trator that the setup is geared to establishing pre cedents, which are distributed down to foremen and union stewards for future use. Comparatively few cases go to arbitration, and as one grievance is settled, it more or less automatically settles those like it that may be raised in the future. Another motor company allows its arbitrator more latitude, but his rulings are less likely to be used as a guide in future cases. This company has many more cases coming up to the arbitrator. Many of his decisions simply grant or deny a complaint without opinion. But neither system is wrong . . . if it is fitted to the people who use it. Decisions that seem to have the force of law may be the best means of deal ing with one kind of situation. A system that lets a lot of people blow off steam by getting their cases to the top of the grievance system— that is, the arbitrator— may be,the best way of dealing with another situation.® Before leaving the discussion of the various kinds of permanent arbitration setups, brief mention should be made of 6 “Man in the Middle Talks Shop,** Modern Industry, Vol. 15, No. 3 (March 15, 19^8), p. 75- the composition and purposes of a "board of arbitration," Both the jyl hoc system and the permanent system sometimes utilize such a board, usually tripartite in make-up, with three or five members, the impartial arbitrator, having the deciding vote. Thus the neutral arbitrator has the advantage of the point of view of the partisan members and their knowl edge of the conditions in the industry. This advantage operates even more completely in the permanent setup since, as Seward points out, "until [the] moment the decision is signed, ... [the impartial arbitrator] can consult the 7 union member, . . . or company man in [the] next office." Also, as stated in the same article, . . . no arbitrator is apt to know the details of a plant or industry as well as either a labor or management man. With them on tap to advise or discuss with as the decision is written, the impar tial chairman is likely to reach a more realistic and practical ruling.0 Not infrequently such boards are able to arrive at a unanimous decision, but most often the decision is a majority one. IV. EFFECT OF PERMANENT ARBITRATION ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS There is no doubt but that the permanent arbitration 7 Ibid., p. 68. 8 Ibid.. p. 78. 83 setup lends Itself most readily to the building of a body of principles -which tend to become more than .lust persuasive in future cases within n particular plant or industry. Where the contract so permits, either by implication or direction, the decisions may serve as binding precedents for at least the life of the contract or the tenure of the selected arbitrator. This is quite logical. For in the permanent arbitration set up, the same individual decides all the cases which come up, many of which involve the same or similar issues, in the same plant or plants. Moreover, the clauses of the continuing agreement under which he operates, and which he is called upon to interpret or apply, remain the same. Thus, his frames of reference or guideposts are fairly constant; and, in this sense, his decisions approach the basis for a developing common law. On this point, William H. Davis, has stated: Just as in the handling of business controversies through the courts, a 'common law* for labor rela tions is being built up in companies which have an arbitrator or umpire as the final step in grievance machinery. When the foreman and shop steward on the lowest rung of the grievance ladder discover that the umpire at the top has issued a ruling in a case similar to the one they are debating, they know it is unnecessary to carry the case on up. They accept the umpire's ruling as binding for the new case, and that grievance is settled promptly^ without going on up and up through the various steps.* Davis made this statement mainly on the basis of 9 William H. Davis, "Industrial Peace— A War 'Must'," Mill & Factory (reprint; August, 19^3)> P» 3* &+ /the War Labor Board’s experience with arbitration. And his conclusions of the stabilizing effect of the use of a permanent arbitrator’s decisions as precedents are borne out by the experience of many of the important arbitrators in the field. George W. Taylor describes his experience in the full- fashioned hosiery industry as follows: On the basis of decisions . . • and out of our collective agreements we have developed a body of common law for the hosiery industry. I think it would amaze you to go into some of our hosiery plants where this system is well developed. When a grievance arises factory workers will come to management and say -that Work Decision F32 develops the principle they have in mind, and management will say, ’Yes, but you forget 03**.’ They compare the decisions. And you could go into a shop today - , q at this minute where just that process is going on. And again, in How Collective Bargaining Works. the same arbi trator expands his views, as follows: During ten years, some fifteen hundred cases have been ruled upon by the impartial chairman under the National Labor Agreements in the full-fashioned hosiery industry. There is not a single instance of noncompliance or non-acceptance. Cases have cov ered almost every conceivable type of industrial dispute, although two general types have been most in evidence. The first is establishment of rates on new styles not provided for in the agreement. Such rates are to be ’in balance’ with others agreed upon by both par ties. Time studies and production studies are jointly carried out and extensively used in such cases. The 0 George W. Taylor, in a speech before the Bureau of Personnel Administration, New York, n.d., cited in 1-A LRR Man. (Washington, D. C.: The Bureau of National Affairs, Inc., T938), p. 91*. 85 second is determination of the civil rights and obligations of employees in their industry. IT system of industrial common law has been built up principally by the impartial chairman*s decisions, by which employee rights and status are prescribed through definite rules and principles. [Italies not in originall. The impartial chairman not only settles individ ual problems but also lays down principles of settlement which can be applied by shop committees and plant management when similar questions arise in the future. No case is unimportant , therefore, and ranking officials of the Association and Federa tion take part in every hearing.3 - - * - Studies of other industries in which permanent arbitra tion is general, whatever form the permanent agency takes, show evidence of the same precedent trend, unless the agree ment prohibits use of arbitration decisions as precedents. F. J. Haas, in his own study of collective bargaining in the men* s garment industry, indicates that comparative studies of arbitration in other industries reveal a similar trend. For 11 , efim&d*, How Collective Bargaining Works (New Yorks The Twentieth Century Fund, 19^2) , pp. *+59- 1*60. Dr. Taylor has often stated in..print and in the class room that it is his firm belief that arbitration is as much legislative as it is judicial, even where the arbitration con cerns an existing agreement. The contract to which the par ties agree, he considers, is in many senses comparable to a skeleton framework; and it is the arbitrator*s decisions which put the flesh on the skeleton. Hence, the arbitrator molds the terms of the agreement by his understanding of what the contract means. Cf. Higgin's statement, supra. p. 39* And note Rosenshine*s warning in this connection, infra. >• 95. 86 example, he states that 90 per cent of the cases coming before the Massachusetts State Board of Conciliation and Arbitration involve disputes in the boot and shoe industry. "Inasmuch as each ruling of the Board is commonly regarded as a precedent,1 1 he says, "an approach toward a uniformity of rates and earnings 12 for shoe workers is realized. ..." And in the clothing industry in Chicago, Rochester, and Mew York, where volun tarily established arbitration boards jointly financed by the parties, render the decisions, Haas found much the same effect. This, in spite of the endless variety of controversies involved, each with its own peculiarities and seasonal problems. The umpire system in General Motors, even with the restrictions previously indicated or perhaps because of them, as Seward implies, has also been able to secure stability and reduction of the number of.cases which might normally go to arbitration simply by the application of precedents already developed. The umpire system has been in effect since 1939> with arbitration limited to particular issues. Five umpires 13 have served in that time. Although about 35,000 grievances are filed a year, only a relatively small number reach the 12 Francis Joseph Haas, Shop Collective Bargaining (Washington, D. C.: published by author, 1922), p. 126. The Umpires have been: Harry A. Millis, George W. Taylor, G. Allan Dash, Ralph T. Seward, and the present incum bent, Saul Wallen. 8 7 Umpire. In 191 * 1 *, for instance, 232 grievances, or three-fourths of 1 per cent of those filed were the subject of arbitration. Hot all of this is attributable to the use of precedents, of course, but a great proportion is. The same company official cited before, in his review of the umpire history at General Motors, verified this and stated as follows: The Umpire decisions are in general use through out the General Motors plants as the text for sessions in foreman training. We endeavor through this medium to constantly better the handling of our labor rela tions problems. We feel, in effect, that the basis for common law in labor relations is being formulated. We find, as we term them, the * shop lawyers1 quoting Umpire decisions to each other in support of their argument when an issue is encountered which may be, similar to one the Umpire has already ruled upon. ^ And outside the particular plant, the decisions may also have some effect, indirect though it might be, upon other plants and unions. According to Mr. Gierok, the national union regularly sends copies of these decisions to its other locals, which have separate contracts with individual companies, and the decisions may then see considerable use for reference pur poses, at the secondary level. As Simkin and Kennedy have indicated: "In a majority of eases the parties to these separate agreements accept these decisions in settlement of l1 ? disputes which may arise involving the same question.1 1 J 13 U - Gierok, op. cit., p. 7* William E. Simkin and Van Dusen Kennedy, Arbitration of Grievances (Bulletin No. 82; Washington,. D. C.: United States Division of Labor Standards, U. S. Department of Labor, 19^6), p. 88 Companies within the same industry, as well, may follow the practice of circulating decisions, and. may. use them for their own guidance. Many non-partisan writers and students who have studied the development and operation of the permanent arbitration set up seem to be in agreement that it secures a stability of rela tionship difficult to achieve under temporary arbitration. Braun, for example, states that one means.of avoiding arbi trary decisions is to accumulate a body of decisions, as is possible with a permanent agency. These decisions then con stitute, for those concerned, **. . . a pattern forshaping l6 their relations and thereby preventing disputes.** Consistent and automatic settlement, by reducing the number of disputes to be adjudicated, have the important by product effect of prompt clearance of an already lessened arbitration docket. That the setting forth of principles which may serve as precedents is useful for effective and rapid disposal of grievances was evidenced by the findings of the emergency board appointed by the President to investigate the causes for the disabling railroad strikes in 19^7• It was found that one of the chief difficulties was a docket of accumulated grievances several years behind the ability of the National 16 Kurt Braun, The Settlement of Industrial. Disputes (Philadelphia: The Blakiston Company, 19l f*+), p. 137. 89 17 Railroad Adjustment Board to clear. The emergency board attributed this situation mainly to the fact that: The Board does not, under its adopted rules, write reasoned opinions when_preparing bipartisan awards, nor does it encourage such opinions by referees assigned to it. Such practice results in the accumulation of a vast number of awards that have no precedent value and prove of no assistance to application of rules purported to be interpreted by the awards when employed by the parties on the property. The strike ballot recites specific awards of the First Division of the Adjustment Board as being authority for the allowance of the claim. By rea sons of the almost telegraphic brevity of the awards cited, it is, in most instances impossible to determine the controlling facts, much less the reasoning, that prompted the award. Many of the cases represented in this accumulation of unsettled claims have been held in abeyance by the parties in this dispute awaiting awards of the First Divi sion which would have a precedent value and which would be of interpretative assistance in the deter mination of claims referred to, but which awards are not forthcoming in form suitable to be so util ized. We are of the opinion that, should the rules of procedure of the First Division of the National Railroad Adjustment Board, as they now exist, be amended to provide for fully discussed and reasoned opinions, the same would be of inestimable value to the officials of both employer and employee charged with the responsibility of administering the work ing agreement and passing upon claims such as are present in this case.1® *■7 For a fuller discussion of the factors involved, see sunra. pp. 70-71* -I Q Precedent Value of Arbitration Awards (excerpt from Report to the President by the Emergency Board, July 30, 19^7), cited in 20 LRR 286. (Washington, D. C.s The Bureau of Nation al Affairs, Inc., September 1, 19^7). Although the Investi gator disavows any intention of entering the, debate on one 90 Lord Amulree made a similar observation some twenty years ago when he urged that arbitrators serving in the Indus trial Court state clearly the grounds, on. which their decisions were based, at least in the more important cases* He stated: • • • the silence maintained by arbitrators regarding the direction in which their thoughts had moved had the effect of making recourse to industrial arbitration unnecessarily, hazardous. Appeal to a tribunal which keeps its counsel wholly to itself and announces its decision without any explanation must appear to parties to be a specula tive proceeding* They have no knowledge of the criteria adopted by the tribunal in considering the pertinence and importance of submissions in previous cases and hence they are under a disad vantage in preparing and. presenting their own ease*1? One impartial chairman of the steel industry has care fully set forth his views, in one of his decisions, on the right of the parties to expect awards to serve as precedents| as well as on the obligations the parties have when they seek reconsideration of a point on which a decision has already been issued. He stated: . . . it is only fair and reasonable to expect an arbitrator's decision to apply to subsequent cases of the same nature. Otherwise, a distinct injustice (Continued) side or the other, it is only fair to note that one of the members of the National Railroad Adjustment Board stated about the report of the emergency board: l l I consider it a very uninformed recommendation.” (Personal correspondence of the author, February 17, 19*+8) • Lord Amulree, Industrial Arbitration in Great Britain (London: Oxford University, 1929) , P* lo*f. 91 would be done. There would be an unwarranted finan cial expenditure in having to carry each case to arbitration— -an expenditure that would bear heavily on the party least able to stand it. Further, the refusal to apply the arbitrator’s decision to simi lar cases leaves unsolved and unsettled the general problem covered by the decision. The parties have a legitimate right to expect the decision to clarify and stabilize their relations. . . . However, it should be incumbent upon the party that makes the request to make a reasonable showing that either (a) the previous decision of the arbitrator was clearly an instance of bad ;judg- ment; (b) that the arbitration decision was made without the benefit of some important and relevant sets of facts or considerations; or (c) that some new conditions have arisen that clearly question the reasonableness of the continued application of the decision. In the absence of such grounds, reasonably apparent, the refusal of a party to apply to a new case the arbitrator's decision can only be interpreted as stated above as bad faith. V. SOME CONCRETE ILLUSTRATIONS OF PRECEDENT APPLICATION UNDER PERMANENT ARBITRATION A clause which illustrates the voluntary application of precedents under the permanent setup appears in the contract between the Full-Fashioned Hosiery Manufacturers of America and the American Federation of Hosiery Workers, and reads as follows: It is hereby agreed that the rates of pay. hours, and working conditions, as set forth in the ’Schedule of Rates', hereto attached, and all decisions and rulings or the Impartial Chairman, as well as Inland Steel Company, 1 ALAA Par. 67,121 (H. Blumer, November 17} 19*+*0 • 92 ‘agreement decisions* heretofore rendered under the previous contracts and not in conflict with the terms o£ this agreement, are hereby adopted and shall be binding on the parties hereto* [Article C, section 1-a].21 Numerous instances of the growth of a body of prece dents within an industry which utilizes the services of a permanent arbitrator can be found by reference to any standard arbitration service. One or two examples will suffice to indi cate the form which these take. The first of these exemplifies citation by the incum bent permanent arbitrator of the decisions of a predecessor arbitrator made eight years earlier, as follows: Prior arbitration awards, by the terms of the contract, are a constituent part of the basic rules governing the conduct of the parties toward each other. Arbitrator Weinstein, arbitrator for the Port of Portland, in April, 1939 ruled on cer tain conditions under which a hatchtender was required. . . . [p. **33 22 Another example provides evidence not only of the per manent umpire citing his own previous decisions, but also stating that were it not for his own later decision taking precedent over that of the one cited by the Company, he would 21 Simkin and Kennedy, oj>. cit. T p. 33* 22 Waterfront IBmolovers Association of the Pacific CoastT 6 LA 719 (C. Kerr, March 8, 19*+7) • See also case with the same arbitrator and parties, 2 ALAA Par. 6 7, 7 8 6, August 12. 19**7, where Arbitrator Kerr cites many previous arbitrators' deci sions, and goes back through fourteen years of precedents. 93 1 1 feel impelled1 * to follow the cited precedent even if he did not wholly agree with it. The Arbitrator states: In Decision Ho. 2, in the light of circumstances closely paralleling the facts in the present griev ances, the Umpire rules that . . . the Company is under no obligation to send other employees home to provide work for the absentee. But the specific issue in this case is whether a penalty of one-day suspension can be imposed if work is available. Again, precedent can be found in Decision Ho. 2. In the decision, I pointed out. . . * [ et c *3 . The Arbitrator goes on to say: The Company introduced in evidence a decision, issued on January 9* 19*+^ > by another Umpire, involv ing a somewhat similar case. . . . Ordinarily, this Umpire would be impelled to follow the precedent of another Umpire in a case of this sort, even if he did not fullv agree with the conclusions reached therein. [ Italics not in original]. But in the instant case, as developed already, my own Decision No. 2 issued more than one year later and applying to this same Yard, takes precedent, [p. J+S1 *] .23 VI. LIMITATIONS ON THE USE OF PRECEDENTS UNDER PERMANENT SYSTEMS Despite the advantages cited for the formation of pre cedents, some companies and unions operating under the permanent arbitration arrangement prefer to avoid the development of pre cedents, and carefully stipulate this in their contracts. Two examples of such clauses may be noted: ^ Bethelehem Steel Company. 7 LA ^82 (W. E. Simkin, May 1, 19^7). 9if Each case shall be considered on its merits and the collective agreement shall continue the basis upon which decisions shall be rendered. No deci sion shall be used as precedent for any other sub sequent case.2^- In the handling of disputes, it is understood that each case shall be decided on its merits, without regard to alleged precedents that have been established in the past.2? There is no doubt that many undesirable as well as desirable consequences arise from the building up of a body of precedents under a permanent arbitration setup., even with in the same industry. Some of these limitations have been described by arbitrators who have had to deal with the prob lems, as well as by authorities who have studied the subject objectively. For example, A. H. Rosenshine, an attorney and West 2h- Labor Arbitration Service. Vol. 5 (New York: Pren- tice-Hall, Inc., 19^7)> PP« 6m-, 21*+. National Dress Manufac turers Association and Joint Board Dress & Waistmakers Union of Greater New York & International Ladies Garment Workers Union. The same clause was utilized by two other garment employers in their contracts with the ILGWU, namely: Mer chants Ladies* Garment Association, cited in Collective Bar gaining Negotiations and Contracts (Washington, D. C.: The Bureau of National Affairs, Inc., 19^5)* P* 51*901; and with slightly varied wording, but essentially the same otherwise, the Chicago Association of Dress Manufacturers, cited in Collective Bargaining Contracts (same publisher, 19^1), p« 120. These are especially interesting because of the otherwise broad powers usually accorded arbitrators in the clothing industry. However, see infraT pp. 96-97, for Dr. Moskowitz* viewpoint. ^ Contract between the United Mine Workers and the Illinois Coal Operators Association, cited in John A. Lapp, How to Handle Labor Grievances (Deep River. Connecticut: Nation al Foreman’s Institute, Inc., 19^5)> P* 17°« 95 Coast arbitrator of long standing, warns of the danger of rigidity which may result* He points out that it is mani festly impossible, in the first place, to draw up a perfect labor agreement, since it is one dealing with complex human relationships. Thus in interpreting the language of contracts by arbitration, the important thing is the approach to the problem covered by the contract rather than the literal lan guage. “In the waterfront situation, for example,1 1 Bosenshine states, “there have been a whole series of decisions by arbi trators construing the contract, and now these decisions are being treated as a system of case law governing the situation.1 1 I doubt the wisdom of what we are doing in this respect, and I call your attention to the fact that one of the first sections of the Civil Code of France reads: ‘Judges are forbidden, when giving Judgments in the cases, which are brought before them, to lay down general rules of conduct or to decide a case by holding it was governed by a previ ous decision. 1 My reason for believing that this may constitute the wrong approach is that it makes each side look too closely at the letter of the contract and for get its spirit.2® John Lapp, in his book Labor Arbitration urges that: “The permanent arbitrator in an industry where arbitration is new . . . proceed with great caution in attempting to establish 26 Albert H. Rosenshine, Problems of Arbitration. Paper presented at the Second Annual Stanford Industrial Rela tions Conference, 1939 (Palo Alto, California: Division of Industrial Relations, Graduate School of Business, Stanford University, 1939), P* 203. 96 27 a common law for the handling of disputes before him.*1 Mere striving for consistency and abstract justice will usually only lose the arbitrator his job. And Sumner Slichter advises that: • • , precedents should be established slowly and previous decisions should be regarded as guides to future decisions rather than as binding precedents. The process of interpreting an agreement is an experimental one, and should be regarded as such by both sides. Experience under one interpretation may be the reason for changing the interpretation. ° Williamson and Harris point out that: Sometimes . . . an impartial chairman can under mine rather than strengthen collective bargaining. If he has an overdeveloped legal sense and is guided more by precedent and rules than by a desire to settle a specific problem, he may clutter up instead of simplify grievance procedure. For grievances which are settled by rules and precedent and not q according to their merits still remain grievances, ^ Still another expression of critical attitude is revealed in Rita Morgan’s discussion of the methods of the Chairman in the Men’s Clothing Industry, Dr. Moskowitz, who, she states: • « , was most insistent upon the importance of eliminating the factor of precedent from the ^ John A. Lapp, Labor Arbitration (Deep River, Connecticut: National Foreman's Institute, 19H-2), pp. 17^-175* 28 Sumner Slichter, Professor of Industrial Relations, Harvard University, cited by U. S. Bureau of Labor Statistics in its Bulletin Number 60, entitled Settling of Plant,Griev ance s. 19^31 P* 38. ^ Williamson and Harris, op. cit., p. 127* See also footnote 6 9, suura. p. 73* 97 decisions of the arbitration machinery. He felt that a consideration of each case upon its own merits was of paramount importance. He said that he felt that it was in this respect— -freedom from regard for precedent— that his function as arbitrator differed most significantly from that of a judge in a court of law.3° A most important concern is in connection with the application of precedents rendered in one plant to other plants or branches of an industry under the same contract. Here again Dr. Slichter takes a firm stands When an agreement covers a considerable number of plants, no single employer and the union offi cials in no particular plant should be permitted to bind anyone else. If, on appeal from a second plant, an interpretation agreed upon in the first plant is later overruled, neither side should be subject to retroactive expense.■J1 However, these are merely warnings to arbitrators and parties to use the precedent-making power wisely, carefully, and with limits. In general, the authorities seem to consider that under the permanent setup, precedent-making decisions offer a more solid foundation for sound relations, and the eventual narrowing of the area of disputes. In this connection, Simkin and Kennedy point out: Stability of relationship between the parties is so important that the acceptance of some precedent ^ Rita Morgan, Arbitration in the Men* s Clothing Industry in Hew York City CNew York: Teachers College, Columbia University Bureau of Publications, 19*10), p. 51. Settling Plant Grievances, on. ci.t.. p. 3 8. 98 value of decisions is almost essential* There are enough new disputes arising during the life of an agreement without rehashing old ones which have been settled in principle by a third party.32 These authors indicate, too, that acceptance of precedent is not necessarily binding indefinitely; for when the next agree ment is written, modification of the contract clause on which the principle is based or insertion of new contract language can change the precedent. This seems a roundabout way to achieve its purpose; but frequently even in ad hoc arbitration, interpretation of a contract phrase or clause will show up weaknesses not evident before, thus suggesting an improvement or change in wording that will also have to await future nego tiations. To provide statistics for the belief that precedent- making decisions under the permanent setup greatly reduce the number of cases which go to arbitration, one of the authors, presumably Simkin, cites one of his own experiences as a per manent arbitrator. The first year under a certain contract he issued 11*+ decisions. But the following year only twenty-five cases were appealed to arbitration. In another experience as permanent impartial chairman of an industry area arbitration system covering several hundred separate companies organized 32 Simkin and Kennedy, o£. cit., p. 33* 99 into a manufacturers' association, it was necessary to issue only a total of eleven decisions in one year. Similar experiences have been reported by such arbitrators as George W. Taylor and Ralph T. Seward, who have both, expressed the same idea that the ideal arbitrator should work himself out of a job. To the fear that an arbitration board will feel obliged to apply the precedents from one case or branch of industry to another case or branches fundamentally different, Braun states: . • • such a lack of judgment would not disprove the usefulness of permanent arbitration, but would be merely an indication that the arbitrators concerned were lacking in a knowledge of how to use precedent.35 He also points out that there is nothing inevitable about decisions rendered by permanent arbitrators. Changes in the membership of permanent arbitration systems is possible even during the life of the contract under certain comprehensive systems, which may even provide for expert panels or changes in the personnel of single panels with each decision. As Reward has indicated in the article previously referred to, "That is one of the great advantages of 33 Ibid.. p. 10. Madera Industry, op. cit., p. 70. 35 Braun, op. cit., pp. 137-138. 100 arbitrations it can be tailored to fit the group that will use it, and will give all the more satisfaction because it's cus- 36 tom-tailored," VII. SUMMARY It can be seen from the above survey of opinions that there is no complete unanimity even with respect to the value of precedents in permanent arbitration setups. However, for inherent reasons, permanent arbitration certainly seems both more susceptible to and more likely to benefit from the judi cious use of precedents than any other form of arbitration studied. Whether the principles evolving from this type of arbitration will have any great use or value for industry in general, or even for other industries of similar size and setup, but different in details, is decidedly an unsettled question. Certainly there is little to indicate that such principles are likely to become precedents outside of the contracts under which they were developed. Undoubtedly some principles are persuasive enough to be carried over and.used in ad hoc cases handled by an arbitrator who serves as umpire or impartial chairman for a plant or industry. And, equally, such persua sive principles when often repeated may well affect the think ing of other arbitrators when preparing their own cases. These 36 M a m Industry, op. cit., p. 68 101 will be exemplified in the next chapter, which discusses ad hoc arbitration in the same way that permanent arbitration has been considered in this chapter. University o f Southern C a l i fo r n i a Library CHAPTER V VIEWPOINTS ON THE DEVELOPMENT OP PRINCIPLES AND PRECEDENTS UNDER “AD HOC1 1 SYSTEMS OF PRIVATE, VOLUNTARY ARBITRATION I. PURPOSE OF THE CHAPTER Tills chapter endeavors to present an over-all perspee- 1 tive of ^ hoc arbitration, from the standpoint of precedent development, as was attempted in the previous chapter for per manent arbitration. The same approach is taken. Background is first provided, which gives the definition and salient characteristics of ad hoc arbitration, Its advantages and dis advantages, and its effectiveness in the use and development of precedents. Viewpoints on the present status of principles in ad hoc arbitration are then given, including a discussion of the role of stare decisis in this type of arbitration, A summary closes the chapter. II* AD HOC ARBITRATION— BACKGROUND In temporary arbitration, most frequently referred to as ad hoc arbitration, the arbitrator is selected by the parties to decide a single case or a specific group of cases I This is the most prevalent form of contemporary arbi tration, and operates across industry lines as permanent arbi tration usually does not. 102 103 when the grievance involved has reached the arbitration stage. The arbitrator's tenure of office is limited to the particular service, and there is no commitment on the part of either the company or union that he will be used again. There are some advantages in the temporary form of arbitration in addition to the one of being free to change arbitrators at will. Where the number of employees or the number of disputes are relatively small, the use of temporary arbitrators may be more satisfactory than the use of a per manent arbitrator whose services must be paid for a definite, agreed-upon period. The parties who use different arbitrators each time need not be as painstaking in their initial selection as would be the case if they were agreeing on a permanent arbi- 2 trator. Any fear the parties may have in connection with the possibility of the arbitrator acquiring a bias or supplanting the parties in the determination of their labor relations policies, are, of course, minimized under the .ad hoc arrange ment. Highly specialized knowledge is more readily obtainable in this form of arbitration. Thus, if a seniority question comes up, an arbitrator especially recognized for his experi ence in settling such matters may be utilized, and another o This advantage is not an important one, however, when weighed against the time loss that may be caused in selecting a new arbitrator for each case, and the potentialities of dis agreement over the mutual acceptance of an arbitrator in some cases, especially those involving basic principles. lob arbitrator called in when the question is basically a legal one. An.economist may be better qualified to arbitrate wage and hour issues, for (as has already been noted) the pertinent areas of fact in such questions are vague and complex, and 3 often require a specialist to extract the essentials. And finally, if a particular arbitrator is satisfactory to both parties, there is nothing to prevent them from jointly agree ing on his services on successive occasions, thus securing the advantages of the permanent system without some of its dis advantages . However, there are numerous disadvantages to the aid hoc arrangement as well. The parties in most instances must repeatedly agree on the selection of an arbitrator, so that instead of having only one controversy to settle, they may have two. Good arbitrators are few and far between who have not incurred somebody1s wrath at some time in their career or who have not issued decisions elsewhere on similar issues which may influence one party to •blackball' them for a specific case in spite of^. excellent qualifications in every other respect. ^ Snora. p. 25* b Win. E. Simkin and Van Dusen Kennedy, Arbitration of Grievances (Bulletin No. 82; Washington, D. C.s United States Division of Labor Standards, U. S. Department of Labor, 19^6), p. 9« Also see Albert H. Bosenshine, Problems of Arbitration. Paper presented at the Second Annual, Stanford Industrial Rela tions Conference. 1939 (Palo Alto, California: Division of Industrial Relations, Graduate School of Business, 1939)? pp. 197-198. 105 A last-choice or last-minute selection, oftenthe only one available on short notice, may be far from competent, having few qualifications or little experience, since the chief asset of a selectee chosen on such a basis is the one of being unfamiliar to the parties. Another disadvantage is that an ad hoc arbitrator is often "green1 * to the arbitration environment of the particular situation. Procedure must be worked out in each separate instance. Each new arbitrator must be acquainted with the technical conditions prevailing in the plant and industry, lengthy explanatory briefs must be submitted by the parties, and the arbitrator, will, if conscientious, require more time to write his decision. Lack of familiarity with the parties involved, the contract and its various provisions, the plant rules, et cetera, all may make for less accurate judgment, and well may tempt the parties to present their cases in a package of two or four cases with the hope or expectation that the arbitrator will wish to please both sides and seek to average out his decisions. An apparent disadvantage— and the one with which we are primarily concerned here— is that of inconsistency in awards which frequently occurs under the ad hoc arrangement. This may not always be a disadvantage; in fact, it is often a distinctly desirable characteristic, a point that will be developed subsequently in this chapter. 106 III. EFFECT OF AD HOC ARBITRATION OH THE DEVELOPMENT OF PRECEDENTS “If a contract interpretation has any precedent value," Simkin and Kennedy have stated, “it persists only until the next time it is tested before a different arbitrator. Result ant conflicting decisions from two or more arbitrators may create more disputes than have been resolved." A party may laboriously win its point through a fair arbitration decision that is supposed to be final and binding, only to have it jeopardized should the losing party wish to submit a similar issue to another arbitrator. The permanent system, as has already been shown, uses precedent advantageously in this connection; and in most such arrangements, the umpire simply declines to accept cases which do not present issues or involve situations different from 6 those already decided. ' Simkin and Kennedy, loc. cit. z The Arbitrator, instead, refers the parties back to the key cases which have already disposed of the point at issue,.or the parties themselves settle the issue on the basis of a precedent decision. Sunra. pp. 8*+, 8 7, 90, especially. However, the warning that grievances which are settled by rules and precedent and not according to their merits may still remain grievances is an element to be considered in this connection. The outlet which jid hoc arbitration provides for bringing up the issue another time if necessary by presenting it to another arbitrator in a slightly different form may, in this regard, at least, be considered an advantage. 107 Ad hoc arbitration is considerably simplified if the parties can agree to accept previous decisions as at least persuasive, if the issues are similar and the parties are the same. Even where the parties are different, they can learn much if the arbitrator they have selected has ruled on similar issues in the past. However, in so doing, the parties must not overlook the fact that two apparently inconsistent decisions may be made by the same arbitrator with, for all apparent purposes, practically the same set of facts before him. Or two jzd hoc arbitrators serving in different plants but dealing with vir tually identical issues might arrive at quite dissimilar awards, and both with justification. Paradoxical though this may seem, it is often the most sought-for advantage of ad hoc arbitra tion. The reason for this being considered an advantage is that the surrounding circumstances of each case may be quite different, altho'such circumstances may not appear in the decision at all. As one author has indicated, "the arbitrator knows very well that his decision is based on a hundred sub tleties of economics, social philosophy, psychology and pure hunch . . . all of which add up to his estimate of what will best further a continuing more harmonious relationship between 108 7 the contenders." The arbitrator, unlike the judge, is not looking pri marily for an invariable rule of law which will bind the par ties to a given course of action. Rather, within the limits of the contract, he is seeking a rule of reason which will provide an equitable decision for both parties and at the same time make it possible for them to function together effi- O ciently in the production process. Thus considerations which might be irrelevant in a court of law are basic in the labor arbitration process. The court is concerned primarily with rights and wrongs, the arbitrator with that which is wise or unwise in view of the possible consequences of his decision. As Seward has stated its 7 ' Aaron Levenstein, "Some Obstacles to Reporting Labor Arbitration," The Arbitration Journal. Vol. 1, new series, Ho. 4 (Winter 8 As Ludwig Teller has said: "Labor disputes do not always or even often involve blame on one side or the other, having reference, rather to differing emphasis Upon varying circumstances." From A Labor Policy for America (New York: Baker, Voorhis & Co., Inc., 194-5), p. 2p6. And Dr. Taylor stated this thought: "Too often in labor relations, the principal objective of the interested parties is to pin respon sibility, to fix the blame for a bad situation. I have found, however, that after you have fixed the blame upon somebody in a labor dispute— -after you pin a rose on the fellow— you still haven’t solved the underlying problem. And it won’t be solved just by calling names or winning a debate." (In a speech delivered before the American Management Association, Hew York City, April 11, 19^5, HWLB Release B-2044). 109 . • • Mhat happens after arbitration is as important as what happened before, or more so* It’s possible to win a case and find the situation worse than it was before. The whole thing pays off on the plant In this way, arbitration differs from any other kind of litigation* . . . In the usual court cases, the contenders fight it out, throw their best punches, lose or collect, and then never see each other again. . • [in arbitration] there is a continuing situation. Min, lose or draw, £he parties keep on living with one another. . . The permanent arbitrator is in a good position to be aware of the consequences of his decision and may strive for consistency while at the same time tempering it to take all this into account. Similar attempts at consistency may be neither desirable nor practical under ad hoc arbitration."^ But the very freedom from the constraints of precedent provides the ad hoc arbitrator with the same opportunity to adjust his decisions to consequences. Levenstein has summed this up quite simply and frankly as follows: Arbitrators must concentrate on the particular facts and all surrounding circumstances of the case before them. Any attempts to divert them to an emphasis on how other arbitrators decided when con fronted with like situations would defeat the very objective of arbitration. It would prevent the arbitrator from finding an ’out' which may be neces sary In order to enable the parties to live together ^ ’ ’ Man in the Middle Talks Shop,” Modern Industry. Vol. 15, No. 3 (March 15, 19^8), p. ?6. 10 Gf. sunra. p. 22 (footnote 15) , pp. ^7, 50-51 * - , 95-9 6. 110 under the contract for the balance of its term.” ^ The art of the arbitrator, most authorities agree, lies in the exercise of his personal judgment and practical understanding of the problems and situation in the plant, rather than familiarity with or adherence to the decisions made by other arbitrators. The parties have purposely selected the particular ad hoc arbitrator because of their confidence in his making a decision which will take into consideration all the nuances of their relationship9 and thus decide the case as they would have done themselves could they have gotten together on the 12 point at issue. All this does not mean arbitrary decisions will be con sidered. A decision properly may not be made on one basis one ^ Aaron Levenstein, "Some Obstacles to Reporting Labor Arbitration," The Arbitration Journal. 1:^2?, Winter 19*+6. 12 Rankin has some interesting comments in this connec tion, which, although they refer to arbitrators on the Indus trial Court, are equally appropriate to ad hoc arbitration. She states: "Mow if both parties agree to submit to arbitra tion on this question they have accepted, or voluntarily adopted, at any rate for the time being, the principle that a certain wage should be paid if the industry can bear it and all that the Arbitrator has to do is to decide on the facts of the case as best he may and strietly speaking on the evi dence which the parties themselves place before him. But it must be insisted upon the Arbitrator is here laying down no principle. He is merely applying a , principle voluntarily agreed upon by the parties concerned. It is true that seldom is the point in dispute the clear issue— can the industry bear a given wage?— but more usually which of two wages, the Ill day and on an entirely different one the next. Arbitrators I'j are limited by the "statutory law1 * of labor arbitration, and especially in j j j c l hoc arbitration it is essential that: Arbitrators must follow the words of a contract which they may be interpreting, and if those words are clear, no fanciful construction should be placed upon them. The parties may change the words by mutual consent or by a new agreement. No irreparable harm is likely to be done by following the language as written, whereas very great harm might come from 12 (Continued) employer's offer or the worker's demands, should the industry bear assuming both to be possible. In other words the prin ciple of 'what the Industry can bear' is capable of at least two interpretations, viz. the utmost the industry can bear and still continue the existing volume of employment; and what it can bear with more obvious safety. The former is the interpretation naturally most favoured by the workers, the latter by the employers. The Arbitrator may decide to favour the 'utmost' prin ciple and award accordingly, but he will only find employers who agree with this interpretation submitting wage settlements to him in future. More generally he will follow the principle of safety and steer a middle course between the rival claims« arriving at what is in reality a conciliatory decision, i.e., he will give no definite interpretation to the principle, but will be guided in each case by the facts placed before him and the views of the parties concerned; he will arrive at a decision not essentially different to that which the parties themselves with their own knowledge of demand and supply could. given greater confidence or reasonableness. have arrived at by agreement. This procedure is frequently somewhat contemptuously referred to as 'splitting the difference,' but in splitting the difference under such circumstances, the Arbitrator is in real ity applying a principle voluntarily agreed upon by ^ the parties before him even though the agreement be by implication only.1 1 [ Italics not in the original] . Mary Theresa Rankin, Arbitration Principles and the Industrial Court (Orchard House, Westminster: P. S. King & Son, Ltd., 1931), PP- 9 and *+1. See also supra, pp. *+5» 50 , 52, oO. ^ Supra, p. 23* 112 a strained construction. But an arbitrator must remember that the words of labor contracts and work ing rules have come out of the practice of the indus try and that these contracts and rules have not been framed usually with the same precision as property contracts. He will seek the meaning of words, not so much in the dictionary, as in the understanding of the parties• 1^ Sound reason must prevail in all cases, but the reason must be in relation to the particular case at hand, rather than in relation to other cases -which may appear applicable or analogous. Accordingly, the doctrine of stare decisis, so vital to judicial decision, has little place in ad hoc arbitra tion.15* IV. STARE DECISIS ANDITS RELATION TO AD HOC ARBITRATION The basis of the doctrine of stare decisis is that once a precedent has been established in the decision of a certain case, that precedent shall be followed in future similar cases, unless it is in conflict with established principles of jus tice. Stare decisis is fundamental in the development of tL. John A. Lapp, Labor Arbitration (Deep River, Connec ticut: National Foremen's Institute, Inc., 194- 2), p. 172. ^ Loc. cit. Also Clarence M. Updegraff and Whitley P. McCoy, Arbitration of Labor Disputes (Chicago: Commerce Clearing House, Inc., 19%)", p. 129; Jules J. Justin, Arbitra tions Precedent Value of Reported Awards (Washington, D. C.: Bureau of National Affairs, Inc., December 29, 19%) ? 21 LRR 9% Levenstein, op. cit., p. h 25. 113 Anglo-American common law jurisprudence. It places courts on notice against declaring wrongful that which custom and usage has sanctioned, and which the weight of judicial authority has approved. Under the rule of stare decisis. certain principles of contract construction in commercial or civil matters, if clearly and distinctly enunciated, are given the force of law. In other words, the decisions and judgments of the courts are given authoritative weight as legal precedents when future 16 eases arise involving similar matters. In labor arbitration, the concept has some relevance so far as permanent arbitration is concerned (as has been 17 indicated previously ); for the permanent arbitrator and his successors often do tend to establish a body of common law for the disposition of disputes which come up under their jurisdiction. Thus, by common consent of the parties, stare decisis may be said to exist within particular arbitration setups. ^ The national courts studied have to some extent endeavored to apply stare decisis in the cases before them, Supr&, P* 50, footnote 35* Also as Foenander has said of the Australian Court; “If . . . principles have been built up over a period after due investigation, the Court demands strong reason to move it to re-consider subject matters based on these principles.” Orwell de R. Foenander. Towards Industrial Peace in Australia (Melbourne; Melbourne University Press, 1937), p. W , 3*7 Supra. Chapter IV, see especially p. 90. ll^f However, the majority of arbitration decisions in the 1 ft United States are rendered by ad hoc arbitrators, who are in a substantially different position from permanent arbitra tion when it comes to the use of precedents and acceptance of stare decisis. The §& hoc arbitrator or temporary board of arbitration must decide each case on the basis of its own facts and merits. Even within the same industry the decisions and awards of ad hoc arbitrators, if employed at all, usually have only persua sive value, and, except by prior agreement of the parties, have no leveling authority beyond the particular case to which they refer. Some contract clauses specifically prohibit the 19 use of former decisions as precedents. 1 O Most arbitration agreements provide that the person or persons who are to serve as arbitrators are to be selected whenever a particular need arises. Of the 915 agreements with arbitration clauses, studied by the B.L.S. Industrial Relations Division, **3 stipulated permanent arbitration machinery, while 872 provided for ad hoc arbitration. ^Arbitration Provisions in Union Agreements,1 * Monthly Labor Review. Vol. 59, No. 5 (November, 19^0, P* 100¥. [See Appendix B of this disserta tion for more complete statistics on ad hoc and permanent arbi tration) . 19 Examples of such clauses ares (a) Each case shall be considered on its merits and the collective agreement shall constitute the basis upon which decisions shall be renderedj and no decision need neces sarily constitute a precedent for any subsequent case. • [ Eastern Women’s Headwear Association and United Hatters, Cap & Millinery Workers Union], (b) [for the life of the agreement only] It is understood and agreed that no arbitration deci sion made hereunder shall constitute a binding precedent with 115 The introduction of precedents from outside the indus try is even more objectionable because of the wide diversity of conditions prevailing in other industries. Obviously an arbitration decision involving discharge for absenteeism arising in the railroad industry could have little or no use fulness in deciding a discharge case on the same issue occur ring in the garment trades. As Lapp has remarked: . . . Very few of the working rules and working con ditions are similar in the thousands of different types of industries. Each industry has developed its own working conditions out of its own experience, and to decide an issue in one industry on the basis of decisions in another would be likely to lead to injus tices. . . . Economic conditions vary too widely from industry to industry for precedents of one to prevail in another.20 Labor organizations, perhaps even more than management, have objected to being bound by precedents in ad hoc arbitra- 21 tion. They wish to avoid the expense, need for specialized personnel (such as lawyers), and the complexity of formalized ^ (Continued) respect to any renewal of an existing contract or any making of a new contract between the union and the company, but the force and effect of arbitration decisions shall expire at the end of the contract year or renewal thereof. [Mueller Brass Company and HA.W-CIO] . These clauses are to be found in Labor . Arbitration Service. Vol. 5 (New York: Prentice-Hall, 19^7)> pp. 6^t, 21*f. 20 **app, J2S* cit.. pp. 175-176. Of See Teller, A Labor Policy for America, op. cit.. P* 257* 116 proceedings which would inevitably follow codification of decisions. Moreover, they prefer arbitration to be free from the rigidities which accompany legalization.22 A less con cretely expressed fear is that codification of decisions or greater acceptance of the use of precedent would inevitably 23 impede progress and change in employment conditions. But most of all, they want the decision to be based on the current conditions and facts of the case, not on some prior situation. For they may, themselves, consider that a cited prior decision has little or no validity, or has no relationship to the matter under consideration and, therefore, they do not want it introduced in prejudice to their ease. This was well illustrated in the dissenting opinion of a union appointed arbitrator in a recent case. He states: We cannot concur in the majority report nor do we consent to its publication in any periodical. Merely because the_ Union will be bound by such a majority finding in . . . [this] ease, is no reason why other workers should be bedevilled by erroneous precedent dignified under the label of 8 L.A.R. - or 10 L.E.-. The majority report is legally wrong, technically wrong and morally wrong. It glibly refers to prece dent which is inapplicable. It tortures the common Cf. supra. p. M+. 23 Cf« supraT p. 5S. Also note Rankin's comment that: "One real objection to industrial.arbitration from the point of view of progress has always been its possible tendency to stereotype existing conditions. But this cannot happen when the validity of each decision depends on interpretation in relation to prevailing conditions•" See additional remarks on this point, supra. p. 117 sense construction of a labor agreement to reach a fantastic conclusion. We assert that the majority report misunderstands the precedent upon which it relies. The careless dictum of . . . [the cited arbitrator] in the Swift case that his decision would have been the same . . . [etc.] simply will not stand analysis. [The cited arbitrator’sF observations violated the fundamental principle of labor arbitration that the arbitrator should decide only the issues submitted to him and nothing else.24- In this illustration, it can be seen that the union- appointed arbitrator not only disagrees with the use of the cited precedent, but also seeks to protect other ’ ’workers” from Its ’ ’ harmful effects.” And he takes violent exception to the belief of the arbitrator writing the majority opinion that the precedent cited was either applicable or correct in itself. Still another objection shared by both management and labor is based on the fact that they have, with considerable care and effort, selected a particular arbitrator for his own personal qualifications. “They are, therefore, not friendly to the idea that their arbitrators shall be influ enced by decisions of men they did not choose and about whom they know nothing. pL. International Milling Company. 2 ALAA Par. 6 7 ,8 2 8 (Henry Rottschaefer, August 30, 19^+7) • Dissenting opinion by S. T. Wildes and G. Zipoy. 2 5 Francis Kellor, Arbitration in Action (Hew York: Harper and Brothers Publishers, 19^l), p. 127 • 118 Many attorney-arbitrators are aware of their tendency to be over-legalistie in their approach to arbitration, in procedure as well as in the writing of their decisions. If so, they strive to avoid emphasizing precedent in their deci- 26 sions. There are some, however, who, conditioned by a long background in law, tend to write arbitration decisions that closely resemble the briefs they prepare for courtroom presen tation. An example of one of these follows: Job classification is (like job assignment: Riverside & Dan River Cotton Mills, Inc., 16 War Lab. Rept. 6 6 3, and job evaluation: United Air craft Corp., 21 War Lab. Rept. 137) the sole and exclusive function of management in the absence of contract or rule of law to the contrary (Gray Manufacturing Company, 7 War Labor Rept. 401: Rig Four Meat Packing Companies. 21 War Lab. Repp. 652, bilateral determination denied, 2*+ War Labor Rept. 7^3; Glenn L. Martin Company, 23 War Lab. Rept. 373 and 6 3 6, joint determination denied, 26 War Lab. Rep. 8 3 2, 27 War Labor Rept. 792; New York State LRB v. Union Club 268 App. Div. $16 [15 LRR Man. 769U . 27 Both management and labor representatives often object to decisions which are little more than a citation of previous 2^ See opinions expressed by attorney-arbitrators inter viewed, Chapter VI. 27 Submarine Signal Company, b LA 6l (H. W. Babb, June 16, 19^6). This is an excerpt from a decision seven pages in length, and all in the same vein. The Arbitrator has been the head of the law department in a university as well as a practising attorney for a considerable number of years. It is understandable that his decisions would reflect this long training. It is interesting too, to note that the majority decision cited previously (Footnote 2*f) was also written by an attorney-arbitrator. 119 awards or court references. On the whole, however, management representatives are not so much opposed to the use of precedents in individual awards as are unions, although they do not especially favor it either. Since management is responsible for the smooth functioning of production, it strives to stabilize all of the 28 elements of its activities wherever possible., This may account, in part, for management's lesser opposition to pre cedent, for it provides an element of certainty. Furthermore, management is accustomed to the use of legal procedures in its various dealings, and thus has neither the same fear nor dis like of such procedures, or for the precedents that go with them. As a matter of fact those who have studied the subject seem to think that management's continuing hold-off attitude toward arbitration in general, despite its increasing use of this form of settlement, may be due at least partially to the lack of positive principles in arbitration. Braun states this, as follows: . . . the questions which employers and employees have hesitated most of all to submit to arbitration have been exactly those regarding which the arbitra tion machineries had not produced discernible prin ciples. Consequently the result of arbitration pro ceedings necessarily have been so unpredictable that because of the importance of the problems the parties have shrunk from taking the risk of a casual decision. ^ See Prentiee-Hall Labor Arbitration, op. cit., pp. 6 0, 12G However, where principles have existed, • • • the contending parties have shown much less reluctance to rely on arbitration. Unfortunately, both labor and management overlooked the fact that, where such principles did not exist, insufficient employment of arbitration was the cause. Furthermore, they dis regarded the fact that this vicious circle cannot be avoided unless arbitration is employed sufficiently to develop that very 'legal security* which they seek. ' In many instances parties are still_fearful that they are abdicating their powers and prerogatives, and permitting the will of one individual to substitute for that of both 30 management and the union. Obviously, the arbitrator does not impose his will on the parties. They have, in effect, requested the arbitrator to act for them temporarily when they could not resolve their own problem, and voluntarily have given up the right to make the necessary decision for them- 31 selves. Competent arbitrators, as Braun has wisely pointed 29 Kurt Braun, The Settlement of Industrial Disputes (Philadelphia: The Blakiston Co,, 19^f), pp. 121-122; see also supra. p. 90. 3° Teller in Management Functions Under Collective Bar gaining T op. cit., p. 50, also stated: *'. . . the fear still exists in many management circles that the procedure of arbi tration in its present undefined scope may result in the impairment of essential management functions. This fear will continue to exist until through arbitration there is built up a sufficient body of jurisprudence to show that it is no longer well grounded.” Seward, too, has stated in "Man in the Middle Talks Shop," Modern Industry, op. cit.. p. 70: ". . . when the question of going to arbitration arises, management and labor tend to look on it as abandoning the problem— turning it over to some expert. Yet, actually, all the authority comes from the parties themselves and they can exercise a great deal of control over the arbitration and make it what they want it to be." Also see General Motors solution, supra, p. 79. 31 Cf. 3SB£&, p. 53. 121 out, do not act arbitrarily in the usage of this temporary grant of power. If they do, they do not last long in the 32 profession. He seems to believe the trend of present arbi tration is toward the consolidation of principles. And this . . . creation of new law and new economic principles through adjudication should not give rise to doubts and suspicion particularly in countries where the law must not necessarily be codified and the applica tion of equity and precedent is an every day occur rence. 33 Mhether tolerant toward precedents or not, when parties believe precedents will strengthen their case they do not hesi tate to cite them. Lapp warns arbitrators against Man exces sive use of precedent^1 1 since . . . neither the employers nor the employees accept precedents as final. They may advance precedents in argument when the precedents serve their purposes, but they will denounce, them equally when they do not serve their purposes. V. IMPORTANCE OF PRINCIPLES DEVELOPING IN ARBITRATORS* AWARDS From the examination of the opinions and conclusions of the authorities and practitioners in the field, it appears unlikely that the use of precedents on a formal basis will be ^2 Cf. sunra. p. 110, footnote 12. 33 Braun, 033. cit., pp. 120-121. 31 * Lapp, on. cit. T p. l?a. 122 a development in ad hoc arbitration in the foreseeable future. However, even if precedents in the sense of binding rules are not welcomed by either arbitrators or the parties themselves, previous well-considered decisions of arbitrators have a distinct importance. They compel consideration and exercise persuasive force. Enunciated principles which are just and reasonable, although neither controlling nor authori tative, may carry significants weight with other arbitrators and with parties, who, by simple reference to decisions on issues similar to their own, can sometimes reach agreement without recourse to arbitration. It is in this sense only that prior decisions can be said to have precedent value at the present stage of industrial relations. It is not, of course, unusual for ad hoc arbitrators functioning in different plants or industries to rely upon principles developed in their own former decisions, where these seem to be applicable. W. P. McCoy, who serves mainly in the Southeast section of the United States, utilizes the same principles repeatedly as will be noted in Part II of this study. His reiteration of certain principles and application of these to varying situations have sufficiently established them so that other arbitrators also use them as standards for cases which they are deciding. And although they do not con strue these principles as precedents, importance is attached to them. An example of this is to be found in the decision 123 of B. J. Wagner in the Ingalls Iron Works Case, where he refers to a principle enunciated by McCoy. He states: % . . . it seems the most prevalent view of discipline for absenteeism is that succinctly expressed by the Arbitrator in t. .3 Pacific Mills (3 LA l1 *!) wherein discipline for even bonafide illness was sustained: 'A plant cannot operate without some assurance that its employees will come to work. ’35 Arbitrator Wagner also cites five other arbitrators* decisions -in the same opinion.^ Another example of an arbitrator who cites his own decisions, as well as numerous decisions of others, is found in the K. Stenzel & Sons case. This arbitrator states, in part: The most exact formula which would be based on the connection between holiday pay and work days worked would be to gear the holiday pay for the total number of holidays to the total days to be worked during a contract. A grouping in the direc tion of this formula mav actually be discernible in the case by case evolution of the relevant practice and decision. This is indeed the effect of what mav be an emerging rule that holiday pay is not denied generally where a layoff is temporary unless it is unreasonably prolonged. In Thompson Mahogany Com pany and International Union United Furniture Workers of America, Local 296 CIO (5 LA 397) ? the arbitrator held that under a general clause similar to the one 3 5 Ingalls Iron Works Company. Inc., 8 LA 30 (R. J. Wagner, June 27» 19^+7) • This principle will be discussed in Part II of our study, infra, p. 197* 36 rpkg language -which the arbitrator uses in citing other arbitrators’ decisions is usually the key as to whether he considers them as precedents in formulating his own deci sion or merely as principles worth’ noting. The line of demar cation is not always very clear-cut, however. 12h in the instance case, employees laid off for 15 days due to machine breakdown are entitled to holi day pay. In Warner Bros. Cartoons, Inc. and Screen Cartoonists Guild, • • . [etc.] .37 [Italics not in original] . Without a doubt the arbitrator takes these other cases into consideration in reaching his conclusions, even if they do not bind his final determination.^® Reference to the responses to the questionnaire (which will be discussed in some detail in the following jChapter) reveals that most arbitrators are interested in the decisions of other arbitrators to inform rather than to guide their 39 judgment. The arbitrator is properly concerned with the approach taken by other arbitrators to a situation which is similar to the one he may have under consideration, especially if the question before him is a unique one. As one respondent K. Stenzel & Sons, 8 LA 78 (J. Rosenfarb, July 26, 19^7)• Other cases which illustrate the use of citations: American Telephone and Telegraph Company. 6 LA 31 (S. Wallen, January 8. 1947): Inland Steel Company. 4 LA 657 (H. M. Gilden, September 20, 19H-677 There are, of course, many others. 3® See also, supra, p. 66. 39 Levenstein states it thus: f *. . • the arbitrator may want the texts of other arbitrators* decisions as part of his general professional culture. He will not lean on them as instruments for the making of his own awards. ... his interest will lie in the process of decision, not the result. He will be concerned with the reasoning of other arbitrators, with their approach. He may guide his own mental processes on that basis, but he will not read the awards of others for the purpose or duplicating them in the situations presented to him.*1 Gp. cit., p. k-27* 125 indicated: There are cases of novel impression . . . where an arbitrator feels safer in his judgment if he can find a similar determination by another arbitrator. In short, I am always anxious to find out what has been determined by another arbitrator, but I have always reserved the right to determine a case in accordance with my own mature conviction. I think that the publication of awards gives sufficient indication of trends and an individual arbitrator is either free to follow, modify or reject any case. VI. SDM4AHY The discussion thus far has brought us to the point where we recognize that ad hoc arbitration decisions con tribute significantly to the formation of the emerging indus trial jurisprudence referred to at the outset of this inves tigation. However, the contribution is not in terms of developing codified precedents which would have binding force upon the parties, but in terms of principles of equity which persuade by their logic and relevance, and which, therefore, cannot be ignored or lightly dismissed. Such principles are not imposed from the outside, but tend to evolve organically from the collective bargaining process itself, developing eor- relatively with the other elements of the "industrial juris prudence": the systematic and analytic rules, policies, pro cedures, and rights of which Slichter wrote. The next chapter, and the last in Part I, will provide corroboration of this conclusion from those closest to the scene— the arbitrators themselves. CHAPTER VI ANALYSIS OF RESPONSES TO QUESTIONNAIRE ON THE DEVELOPMENT OF PRINCIPLES AND PRECEDENTS IN ARBITRATION In the course of this investigation, the writer inter viewed, through personal contact and correspondence, a number of experienced arbitrators in the United States.^ These arbitrators not only serve all the major industrial sections of this country, but have, in the course of their careers, participated in most types of arbitration systems and situa tions prevailing today. It was felt that the opinions of experienced arbitrators could throw considerable light on the whole question of the evolution and value of precedents and principles in labor arbitration. For this reason their opinions are cited in some detail and in their own words below. A note of caution must be introduced at thfe point with 1 Many of these arbitrators were interviewed at the first annual meeting of the newly-formed National Academy of Arbitrators at Chicago, Illinois, on.January 16-17, 19^8. Since those in attendance were among the most prominent in the country and came from various sections of the country, the following sample was considered to be reasonably authorita tive for our purposes., Approximately forty in all were inter viewed. The foreword to the questionnaire stated that the N names of the individual respondents would not be indicated in connection with the quoted material, but would appear as part of a general index. This index is to be found in Appendix A. 126 127 respect to the questionnaire itself and to the validity of the survey* The investigator makes no claim to conforming with all the rules of proper sampling* The reason for what might appear to be careless disregard of a highly important technical consideration is that the questionnaire and inter view responses were not intended to prove the main thesis of this investigation, but rather to supply additional informed opinion from those persons nationally recognized as qualified to speak on the subject of arbitration* This chapter could be omitted from the study without modification of the basic conclusions reached. But the chapter would appear to add value in its presentation of contemporary informed opinion of a most recent date which has not yet found its way into written works. In this latter respect the writer believes the inclusion of the chapter justified. The full text of the questionnaire may be found in Appendix A of this study, but for better understanding of the answers of main interest to us here, it may be well to 2 list the questions which prompted these answers. These were: (2) If you consult other arbitrators* decisions, what are your reasons for so doing? ( * + • ) To what extent have you found the parties to an arbitration case citing previous decisions O J ■ > ^ Some of the answers, especially those received in the mail, were in the form of a:cssaposite answer to all these questions. 128 to support their arguments? (5) In deciding arbitration cases, what weight do you give to arbitration decisions cited by the parties? (6) Are you in favor of the publication of arbitration decisions: in full text; in summary or digest form; not at all? (7) With regard to arbitration decisions, do you think that a body of standards or guiding principles is developing spontaneously? (8) In your opinion, what are the obstacles in the way of such a development? (9) Do you personally favor or oppose the codi fying of such standards or guiding principles? Please state your reasons in either case. I. RESPONSES TO KEY QUESTIONS IN THE QUESTIONNAIRE An attorney from the New York area, who has had wide experience in arbitration on both an ad hoc and permanent basis, commented as follows: The obstacles in the way of development of a body of standards or codifying principles arise from the fact that adjudication and arbitration differ from legal adjudication in that the prin ciple of stare decisis is less applicable to arbi tration and more flexibility is required than merely the application of a precedent. In view of this fact, I would oppose the codification of standards and guiding principles since I think that flexibility is necessary in arbitration. Having practiced law for a great number of years, I know that it would be detrimental to arbitration to follow precedents in the manner which is customary in legal and judicial procedure. There are too many compromises and equitable dispositions to permit codification and close adherence to prior cases. Another arbitrator, from the Michigan area, also an 129 attorney, who has served as permanent arbitrator in major industries as well as in numerous ad hoc cases, first differ entiated the use of precedents under the two setups, permanent and temporary* He stated that the different umpires serving the various companies within the same industry are interested in each other’s decisions regarding ’ ’ the interpretation of contract provisions substantially similar. ...” (intra industry use of precedents). Ha thin his own setup, as umpire, he has also found that the parties often cite previous cases decided by their appeal board. He advanced the opinion that: I think this is true in other umpire situations. Since these cases deal with previous awards, having to do with the particular parties and their contract or predecessor contracts, they are of extreme impor- ' tance. However, I find that in jyl hoc cases the parties rarely cite other decisions and that these decisions when cited, are of little value to me. He is in general agreement with the first arbitrator cited above on the reasons for opposition to the use of pre cedents. He stated his point of view on this question as follows: I am undecided as to the advisability of pub lishing arbitrator’s decisions. Advantages of publication would include the providing of valuable source material for use in research, training and clarification of thinking. On the other hand, pub lication could easily lead to the substitution of the thinking of others for that of a particular arbitrator and a standardization that might be dangerous. Parties choose an arbitrator because they want him, his thinking and his philosophy. To properly carry out his function, an arbitrator must base his award on the peculiar facts of the particu lar case as he sees them. Ho two cases are exactly alike. Ho two contracts have come into being under 130 exactly the same circumstances. Principles used in one case and apparently applicable to another actually might have no application. To attempt to apply them could result in confusing an issue and in an improper decision. The publication of awards might have a tendency to bring about such results. I very much doubt the advisability of codifying so-called standards or guiding principles, in so far as substantive matters are concerned. It might be helpful to have available alternate standards and principles. These could be most helpful to the par ties for their use in determining the jurisdiction to be given the arbitrator in a proposed arbitration as well as the guides he is to use in connection with the submitted case. Apparently, these same conclusions have validity in all parts of the country. A California arbitrator, who has functioned as permanent arbitrator in the aircraft industry as well as in the West Coast longshore industry, and who brings an academic background in economics.to his work in arbitration, stated that, in his opinion, standards or guid ing principles are developing, but very slowly; and the major obstacles in the way of such a development are “diversity among contracts, industries, relations of parties to each other.“ He concluded that no single code is possible because of this diversity. Another arbitrator, one from the New England area, who is also co-author of an outstanding text in personnel adminis tration and labor relations, stated that he, also, is of the opinion that a body of standards is developing in arbitration, although “we are far from a codified common law of labor rela tions” for the following reasons; (1) “lack of uniformity in 131 the ’statute law’ of labor relations— the contracts1 *; (2) ”the very nature of labor relations which cannot be handled on the basis of rigid precedents.** From the mid-west, a well-known economist, author, and faculty member of the University of Wisconsin, with a back ground of several decades in industrial relations, commented as follows: A body of guiding principles or standards in labor arbitration is undoubtedly gradually develop ing. Publication of decisions in digest form or in complete form contributes toward that tendency. Following precedents closely is undesirable but acquaintance with..what other arbitrators have done in similar cases is, I think, quite valuable. One of the most comprehensive replies to the question naire came from an arbitrator in Pennsylvania, whose wide experience was gained under both ad hoc and permanent systems. To the first question: ‘ ’ Do you consult decisions of other arbitrators on similar matters,” this arbitrator replied that it depends upon where the cited decisions originated as well as whether he is serving on a temporary or permanent basis. If the decisions originated in the same company or industry, he considers them very significant and worth consulting whether under the ad hoc or permanent arrangement. On the other hand, when the parties cite decisions which originated in other industries, he gives them little, if any attention, for, as he stated: ”1 do not consider that.decisions outside the industry have any necessary precedent value and, frankly 132 I do not consult them because I haven't time." However, when serving as permanent arbitrator, he not only checks on previous decisions of his own or of his prede cessors in the same company when these are cited, but he con siders it important to study them even if the parties do not cite them. "I always attempt to consult any earlier decisions which may be pertinent to the case," he stated, because: . . . in a permanent impartial chairmanship or its equivalent there is an obvious necessity for follow ing earlier precedents if it is at all possible to do so, and I feel that it is necessary to know what prece dent has been established, if any, even if the parties do not themselves emphasize it. To the query, "Do you think that a body of standards or guiding principles is developing spontaneously," this arbi trator replied: There is no Yes or Ho answer to this question. Again I think it depends on what kind of setup you are talking about. In every permanent impartial chairmanship that I know anything about a body of standards or guiding principles is developing with the full intent and encouragement of the parties. That's one of the reasons they want a permanent set up. However, such standards and guiding principles are for the most part limited to that company or group of companies or at least to the same industry. As to the development of standards on any broader basis, I at least hope that it isn't happening for . • . it is my very strong conviction that, whereas, a body of common law can be developed for a particu lar company or even for a particular group of com panies under a permanent impartial chairmanship, it would be folly to attempt it on any wider scale for two principal reasons: (a) Practices and desires of the parties vary so greatly from one company to another and from industry to industry that any standards would result in an unwise straight-jacketing of the collective bargain ing process, Cb) Even if it were not for the primary objection noted above, there is no body of men anywhere who are smart enough or wise enough to attempt to do any thing of this sort except on a limited basis where the parties desire it. An arbitrator from Texas, who serves the Southwest, and whose background is quite different from the attorneys and economists previously cited in that he spent many years as a newspaper writer before turning to arbitration on a full-time basis, stressed the danger of the legalistic approach to arbi tration in his response. He stated that he tends to give little weight to other arbitrators' decisions when these are cited by the parties. He emphasized: I am careful to explain to the parties who cite arbitration decisions that I do not feel that they are binding on me, as would be a court decision by a higher court on a trial judge. ... However, he does consider it worth-while to consult other decisions to aid his thinking, and reads not only the cases cited by the parties, but any others he finds which appear to be pertinent to the issue at hand. But his reason for not wishing to be bound by these as precedents is that: "It is very difficult to find from reading an arbitration award . that all the facts and circumstances were identical to the ease at hand." More companies than unions tend to cite precedents, he has found. He attributes this to the fact that companies 13^- generally employ attorneys to represent them, -whereas union representatives are more often men from the ranks— and attorneys are accustomed to using precedents. He does not believe that a body of standards will develop, and stated: . . . so long as arbitration is not limited to the legal profession. So long as educators and writers and people in other business and profes sions are in arbitration work, I doubt that a ten dency towards standardization will be marked. In addition to the fact that the legal profes sion tends toward standardization while others may not, the custom of the parties themselves will go a long way in preventing the development of strict standardization. Some parties insist upon a very formal hearing, with the arbitrator limited by the submission to a narrow field of operation. On the other hand many parties want an informal hearing, and state the issue in broad terms, such as 'What disposition shall be made of the Grievance of Joe Doaks?' Likewise the attitudes of labor and manage ment will stand in the way of standardization, since some of them feel it is proper for arbitrators to mediate and others do not. Since arbitrators are prone to adapt their procedure to the type of pro cedure preferred by the parties, I believe it will be a long while before a rigid body of standards will develop. This arbitrator shares with many other arbitrators the point of view that: I am opposed to the codifying of standards and guiding principles until such time as the unions are able to give their local people enough train ing and assistance so they would not be at a com plete loss as to how to proceed. I am fearful of anything which will complicate the search for the truth, or will interfere with the ability of the arbitrator to make an honest and equitable deci sion. I know of some local union people who would be so concerned about procedure that they would be at a loss to present their cases in a straightfor ward and simple manner. Laymen are critical of 135 court procedure and 'red tape,' and have become suspicious of the courts in many instances. Arbi tration should not be subjected to the same attacks otherwise labor disputes may just as well be handled by the courts. Interestingly enough, in the light of the foregoing appraisal of the damaging effect which some lawyers may have through the over-use of precedents in arbitration, the same view is shared by a Cleveland attorney and arbitrator of long standing, who stated: It is my belief there has always been a natural or instinctive fear of courts by labor groups chiefly because they think it is a mysterious force and they become confused with the procedures involved and have a feeling precedent stops consideration of individual cases. The chief advantage of arbitration is that it is a simple close-to-the-scene procedure to which all interested parties are admitted and, while sitting around- a table, have an opportunity to partake in the hearing and are not excluded by rules of procedure or evidence. From a psychological standpoint this is of considerable benefit to all parties involved in the dispute and provides a safety valve for industry where anyone can fully relieve any feelings he may have in regard to the situation. I am afraid if precedents begin to be used, an arbi trator’s thinking in one case based on one set of facts might preclude consideration of similar eases with a different set of facts and circumstances. This practice would have the effect of undercutting the. entire process of arbitration. This arbitrator considers that the chief obstacle in the way of the development of standards or guiding principles is the "tremendous involvement of industrial relations." Among the reasons which he gives for personally opposing such a development is that codification makes it too difficult for small firms and small unions to keep abreast of the codified 136 developments. He points out that although codification “might provide a method of settling industrial disputes before these disputes arrived at arbitration," published opinions already have this effect "where the parties are reasonable . . . and if the parties are unreasonable the only answer is for them to have an arbitration of their own." Another Ohio attorney-arbitrator also stresses the loss of flexibility which would result from codifying prin ciples in arbitration. "I am opposed," he stated "to codifi cation of any but the most general principles. The inflexi bility of 'the law' is out of place in labor relations." A Detroit attorney, whose arbitration practice is very widespread, commented that, in his opinion, a body of standards and guiding principles are developing slowly; but the "lack of consistent practice or custom by the parties and individual theories advanced by those in the field" constitute the greatest obstacles. He does not favor the purposeful develop ment of such standards, but thinks it should evolve as has the common law, namely by common consent. As a variation from the legal point-of-view, there is the response from a Jesuit priest, who also teaches at one of the mid-western universities. He stated that he believes a body of standards or guiding principles is developing, but only in the area of narrowly defined management prerogatives (which he has been studying for some time). He favors 137 publication of arbitrations in full text, provided they con tain no confidential information or damaging references, because: Such decisions make parties aware of implications of certain clauses, as well as serving to give less experienced representatives of the parties some concrete examples of industrial practice. In a limited way they promote settlement by the parties themselves. They show that certain cases which one or the other party, especially if his experience is limited— may think certain, have actually been lost; and that impartial arbitrators have seen merit in the opposite position. To this extent at least, they promote settlements by negotiation. In his opinion the chief obstacle in the way of the develop ment of precedents is the “wide differences latent in appar ently similar situations.“ Hence, he favors discussion and is opposed to codification. This sampling of opinion is merely representative, of course. Ho attempt is made to cite the answers of all those who were interviewed or who replied to the question naire submitted. But no significant answer has been omitted, and those included represent the general concensus of opinion. While the responses cited are only the views of the particular arbitrator who expressed them, they do reflect the opinions of those not included. One of the arbitrators who responded, an attorney and former chairman of the New Jersey State Mediation Board, replied to the questionnaire in part by submitting one of his own decisions, in which he had discussed the entire 138 question of precedents, principles, and standards. Because of its pertinence to this entire investigation, its value in highlighting most of the points already brought forth, and its appropriateness as an introduction to Part II of this study, the extract is included in its entirety here, as follows: In this relatively new field of labor arbitra tion earlier decisions are being cited more and more frequently. The reporting services have improved. Rulings by government agencies, includ ing the War Labor Board and its various arms, fact finding boards and state bodies were numerous during the war and since. Submissions to umpires named in contracts and to arbitrators named ad hoc have become increasingly common. It is not difficult, therefore, to find cases in point on almost any issue that may arise. However, it appears that rulings either way on any point may be found with equal facility. This is not surprising when one considers that there is no accepted body of law or principle which the tribunal or individual umpire has had access to for sound guidance. Nor should it be overlooked that in labor arbitrations not only are the facts in the case important but all sorts of surrounding circumstances including the public welfare frequently are of compelling weight. The exigencies of war-time, the emergency nature of strikes or threatened strikes which will affect the community at large are factors which undoubtedly have directed the course of reasoning in many cases. A decision standing by itself must be viewed criti cally when offered as a precedent in another case. Surely the legal doctrine of stare decisis cannot yet be applied. The most that can be said is that sound reasoning commends itself, and that slowly there should evolve a body of precedent in general principles. Even principles are by no means yet established. We are definitely in a state of flux. Some principles appear to be emerging, and after a period of normal conditions and the continued publication of views and the underlying philoso phies for the concepts, basic principles and later refinements of the principles will be accepted. At that stage interpretation will tend to become more exact 139 and more consistent. Until then other decisions will he received and studied with interest, but will in no sense be felt to be binding in the case at bar unless there are some unusual reasons for holding otherwise. Well-reasoned statements of principles will naturally be persuasive, but the background of the cited case will have to be understood.3 This felieitiously worded statement, may well serve as the conclusion to this chapter, and indeed, to this part of the study. It sums up all that has been said by the other arbitrators, as well as by the authorities previously cited, quite adequately and completely. Part II of this study, which begins with the next *+ chapter, will seek to determine “the prevalent views” or “case by case evolution of the relevant practice and deci- 5 6 sion” ! , the underlying philosophies for the concepts” or, more simply stated, the factors relied upon by arbitrators in making their decisions. Because this is a relatively new field of inquiry, we shall attempt to chip off only a small portion of the possible subject matter, and confine our attention to a specific major sub-heading under discharge and discipline,— that of absenteeism and its variants. The ^ New York World-Telegram« unpublished arbitration decision of David L. Cole, February 17, 19*+7« u Supra. p. 123. ^ Supra. pp. 123-12*+. ^ Supra. p. 138. I*f0 approach is -wholly objective and wholly exploratory. It is intended merely in the nature of an introduction to an uneharted area, where there is much space and much need for further research. PART II FACTORS TAKEN INTO CONSIDERATION BY ARBITRATORS IN ARRIVING AT THEIR DECISIONS We are just beginning to give serious study to the matter of • • • principles. It is a time for investigation, experimentation and the open mind, not for the crystallization of opinion and the estab lishment of precedent. As any of our present experi mental principles secure ever growing support by virtue of their value and practice, they may gradually be given something of the sanction of precedent. But that prospect is a purely speculative one: the whole industrial world may change before it is realized. — Herbert Feis, Principles of Wage Settlement (New York The H. W. Wilson Company, 192**) , p. 9* CHAPTER VII INTRODUCTION TO CASE ANALYSIS I. GENERAL DISCUSSION A quarter of a century has elapsed since Herbert Peis made the observation which prefaces Part II in connection with the status of precedents and principles in wage arbitra tion* There is good reason to believe that we are in the same relative position today with respect to arbitration of rights'*' as he indicates was the situation in 192b with respect to arbitration of interests, a situation which is still in a most embryonic stage* The investigator- fully agrees that this is “a time for investigation, experimentation and the open mind” rather than for the crystallization of opinion. With the quotation from Peis as a guide, in the second part of this study we are seeking to determine from the awards of the arbitrators themselves, if possible, what over-all principles or factors are being developed or relied upon in cases involving absenteeism and its variants, which may be Of recent date, a few projects which seek to analyze developing principles in arbitration have been started* Such projects are in process at Cornell University, the University of Pennsylvania, and Columbia University. A description of these may be found in “Memorandum on University Research Pro grams in the Field of Labor.1 1 issued by the Committee on Labor Market Research, Social Science Research Council, Washington, D. C., January, 19^8. l*+3 I**- generally applicable to other cases within these headings. Further, we are seeking to discover whether these principles, or combinations of them, are developing discernible inter related patterns. Even if the principle in one opinion may not show an exactly parallel reasoning witha principle expressed by an arbitrator in another case on a similar question, does it nevertheless, extend and affirm the broad principle itself? That is, the principles from more than one case may be required to provide all the variations of a broad principle involved. The writer has endeavored to arrange the cases in such a manner as to provide an orderly and logical relationship of these variations within a principle. Although no two cases are ever exactly alike, substan tial similarity of facts does occur. And with all due aware ness of the fact that surrounding circumstances and contract provisions might result in an altered decision even though there may be a considerable similarity in the facts, never theless both in approach and in conclusions similarity of arbitral reasoning does appear frequently so far as broad principles are concerned. II. PURPOSE AND PROCEDURE OF PART II It is such similarities, as well as the contrasts to them, which we are striving to reveal and highlight in Part II. Correlated in this way, trends, relationships, and deviations 1^5 as well become more apparent* Thus where the reasoning con tained in various arbitration decisions may be evolving into inter-related principles, these patterns can be discerned. The procedure employed involved the analysis of approxi mately a hundred arbitration cases on absenteeism and its variants. These were selected from approximately three times that number examined, as being mast free of extremes or irrele vant matter, and.most illustrative of a principle or princi ples connected with absenteeism. Also the scope of the collec tion of cases has been limited to include only the more impor tant aspects of the subject. Where a case contains more than one. significant prin ciple, the separate principles have been discussed under the appropriate headings. In such instances, cross-references are provided to assist the reader in securing a more complete 2 picture of the case. However, it cannot be stressed enough, that since the cases have had to be separated and disconnected in. this way for purposes of the study, it is essential that reference be made to the case itself in. its entirety for a true picture of any particular decision. Mainly for this reason, the cases selected were those which .are available in printed form in standard arbitration.reporting services, with 2 By way of the alphabetical table of cases, which appears in Appendix C. IMS only a few exceptions, which latter are also readily available upon request. III. SOURCES USED Three collections of arbitration awards provided the bulk of the data in this part of the study. These included: 1. Nine volumes of Labor Arbitration ReportsT pub lished by the Bureau of National.Affairs, Inc., Washington, D. C. 2. Two volumes of American Labor Arbitration Awards. published by Prentice-Hall, Inc., New York City. 3. Printed, but unpublished collections of decisions'^ issued under the permanent umpire systems of: General-Motors— United Automobile, Aircraft and Agricultural Implement Workers of America (CIO) General Motors— United Electrical, Radio and Machine Workers of America (CIO) Ford Mot or Company— United Automobile, Aircraft and Agricultural Implement Workers of America (CIO) These sources contain the full text of the arbitration awards used. In addition, other references were consulted which include arbitration cases along with other aspects of labor- management relations. Among these latter sources were: 3 To those interested these are available in libraries and by writing to either the firms or the unions involved. 1^7 twenty volumes of Labor Relations Reference Manual (published by the Bureau of National Affairs, and dating back to 1935); Labor Law Reporter. for 19*+7 (published by Commerce Clearing House): Labor. Coordinatorr for 19*f7 (published by Research Institute of America); The Arbitration Journal, current and past years (published by the American Arbitration Association) and the Monthly Labor Review (published by the U. S. Bureau of Labor Statistics), current and past issues. Although some of the volumes of decisions issued by the divisions of the National Railroad Adjustment Board were consulted, none of the cases contained thereinare included in this study, since to do them proper justice, a full study of these alone should be made. IV. POINT OF VIEW IN SELECTION. OF CASES The investigator*s agreement or disagreement with the point of view or reasoning expressed by any arbitrator played no part in the process of selection. Each case was chosen because it either illustrated and provided information on a principle under discussion, or_because it contained an instrue tive evaluation of that principle. Where conflicting opinions existed, the investigator has striven to present the various interpretations. In spite of all attempts to select only those decisions where the reasoning of the arbitrator was most apparent, I*t8 admittedly the collection is still far from ideal. One of the reasons for this imperfection arises from the fact that both the reasoning and,conclusions of some of the awards cited were influenced by matters not even referred to in the opinion. Arbitrators for many reasons do not always state fully and frankly the thoughts which led them to their decisions. Caution, fear, expediency, time limitations, et cetera, have often prompted arbitrators to err on the side of insufficient exposition. It is also true that in some cases, arbitrators make their decisions first and then seek those principles which will justify their decision. Compromise has its place i f in arbitration, as was indicated earlier in. the study; but the decision does not always provide evidence of the reason for the compromise• Wherever possible, the words of the arbitrator himself have been used, and interpretative comment has been limited to a minimum. Mhere the excerpts themselves do not provide the facts necessary for a proper understanding of the case under discussion, as many additional facts have been added in digest form as seemed to be necessary for this purpose. Because of the method of using short extracts in the Suera. pp. IO8-IIO. Also see Clarence M. Updegraff and Whitley P. McCoy, Arbitration of. Labor Disputes (Chicago: Commerce Clearing House, Inc., 19^^7, p. 132. 1^9 arbitrator*s own words, lengthy footnotes and quoted passages could hardly be avoided. Care has been taken not to use any excerpts which have a different significance in their context than when separately reproduced. And, although it is realized that a degree of prejudging must, of necessity, be involved, in the extracts selected, the investigator has striven to avoid such pre- 5 judging as much as possible. If practical, it would, of course, be desirable to use only the full decisions, since it must always be kept in mind that the principles appearing in these extracts are based upon the facts of each given situation, and that the decisions from which they are taken depend in large measure upon the particu lar clauses and provisions of the agreements under which the arbitration Is.held. In extracting, the writer has striven to relate the selected excerpts to any special clauses, if the decision was dependent upon them. However, It was not practical to use full decisions; for to do so the study would have to be expanded to several times its present size, and, (even more important) full cita- "tion might serve only to confuse. It is extremely difficult ^ In some instances, for the sake of brevity (especially in footnotes) or for sharpness of point, it has been necessary to bridge the arbitrator*s words by means of explanatory sum maries, or to rearrange slightly the order of the arbitrator*s statements. If in this process any incorrect use of excerpts has inadvertently been made, the author wishes to express his regrets, and would appreciate being so advised, that correc tion may be made. 150 to point out a principle embedded in the complexity of argu ments, facts, issues, and reasoning which necessarily make up most decisions. Since the whole purpose of this section of the study is to set forth clearly the principles which may have some applicability to other situations, and to separate them from the surrounding details of a particular case if possible, the process of extraction from context is justified. Miere it was not feasible to accomplish this aim because the issue was too closely dependent upon the surrounding facts and cir cumstances of the case, the essential points were distilled to the barest minimum, so that the arbitrators reasoning in relation to the general principle under discussion could be highlighted as much as possible. For it is still true that every decision must be con sidered in the light of the facts and merits of each individual case. Any study of principles, such as is being attempted here, is serviceable at present chiefly as an index. It cam provide only a suggested approach and indication of what standards have been utilized by those engaged in the settlement of dis putes. It is, assuredly, not meant to imply that the principles discussed are conclusive or definitive. Application of these principles to any future cases necessarily would have to involve careful interpretation and modification, which would take into consideration any different conditions prevailing in the specific or fresh situation. CHAPTER VIII DISCHARGE AND DISCIPLINE I. PURPOSE OF THE; CHAPTER This chapter provides a short general discussion of discharge and discipline, Indicating the basis in collective bargaining for the arbitrator's, power to determine the right or wrong of a discharge or disciplinary action or penalty. The chapter also briefly introduces the factors which enter into the arbitrator's consideration of a case under this head ing, those factors which will be illustrated in detail In the next chapters by actual cases. II. GENERAL DISCUSSION The collective bargaining contract is sometimes referred to as a "joint bill of rights," because it merely sets forth the general principles necessary to preserve the functions of union and management. The real substance of collective bar gaining is filled in by means of the day-to-day relationships on all levels, from top officials down. Or perhaps it would be more proper to say, from bottom officials up, since these "plant adjustment procedures," as George Taylor has named them, take place among foreman,union steward, and employee, and are as important as the initial negotiations of the contract, if not more so. 151 152 Sources of much of the day-to-day friction and_adjust ments are the disciplinary or discharge actions which arise from infractions of rules promulgated by management in pur suance of its accepted prerogatives of prescribing and amend ing rules and regulations, and the maintenance of discipline for the effective operation of the working force. Unions, on the other hand, consider that protection.against the arbi trary use of these rights is one of the most effective services which it can perform for its membership. Up until the last decade, management’s attitude in this connection was fairly autocratic. Disciplinary penalties were discretionary with management, and subject to little review, except in a few highly organized industries. However, while it is still recognized that management must have the right to take speedy and effective disciplinary action when necessary for the efficient running of the plant, this right is no longer unqualified. In addition to federal and state laws,1 most union contracts place some limitation on the power to discharge and provide for reviewability of disciplinary action through the grievance procedure or by means, of a special speedier procedure set up specifically to handle discharge cases, with eventual recourse to arbitration before an impartial agency. Federal acts, such as the National.Labor Relations Act, as amended in 19*5-7; and state labor relations and fair employment practices statutes. 153 Such limitations usually prohibit the employer from 2 discharging employees without “cause1 1 or for any but specie* ically enumerated reasons. Some contracts, give no definition of what constitutes “ cause”; others indicate exactly what is intended* And many contracts distinguish, between causes which justify immediate dismissal and those for which a warning or warnings must be given, or for which suspension must precede discharge. Some reference to the measures of discipline may also be made in the contract, although disciplinary measures for specific offenses are generally written out in company rules, which are then customarily posted on bulletin boards or distributed to the employees through company handbooks, et cetera. However, it is usually understood that if a rule is changed, some advance notice must be given to the union and employees, even if provision for such notice does not appear in the language of the contract. Besides the limitations in the contract, the employer is expected to make adequate investigation of the supposed violation and to carefully consider the circumstances surround ing it, since there may be extenuating factors involved. Fore men may be haphazard in their application of penalties if they are permitted discretion in such matters, as they often are ^ Or variations thereof, such as “just cause,1 1 “good and sufficient cause,1 1 “reasonable, cause,1 1 et cetera. 15^ with disciplinary measures short of discharge. Bias, favorit ism, anti-union prejudice, or mistake may actually be the real reason for the discipline. A rule whichwas intended to apply only during working hours for purposes of production, plant efficiency, health, or safety may be mistakenly invoked against the employee for his actions during his hours off the 3 job. Or discipline may not be uniform throughout the plant; some departments may be strict in their enforcement of the same rules which other departments observe only laxly and irregularly. Failure to consider all of these facts, or perhaps any one of them, may well, result in the union's requesting a review * * ■ of the disciplinary penalty or action through arbitration. The burden of proof will then rest with the company^ to show by a fair preponderance of the evidence that the discipline was justified and reasonable. 3 For example, an employer may not want his employees todrink the evening before they are to report for work, but use of a rule against drinking for this purpose might very well be considered by an arbitrator as an invasion of the private life of the employees. * * ■ It is generally agreed that cases involving discharge and discipline are among the most numerous to be submitted to . arbitration. See John A. Lapp. Labor Arbitration (Deep River, Connecticut: Rational Foreman* s Institute, Inc., 19^2), p. 37* Clarence M. Updegraff and Miitley P. McCoy, Arbitration of Labor Disputes (Chicago: Commerce Clearing House, Inc., 19^6), pp. 131~132. III. THE PRINCIPLE OF "CORRECTIVE DISCIPLINE" 155 For the reasons enumerated, as well as for the sake of good plant morale, employers tend to exercise caution in imposing disciplinary penalties. The umpire systems, especi ally, have developed positive programs which have as their philosophy the belief that the primary aim of a disciplinary 5 system is prevention, not punishment. For example, the pre viously mentioned management official, H. T. Gierok, in his description of the functioning of the umpire system in. General Motors, states: The Umpires have adhered to a philosophy called •corrective discipline.1 Briefly this philosophy is: 1. The purpose of discipline is to obtain com pliance with Shop Rules, i.e., to correct improper conduct. It should not be punitive in nature, i.e., it is not to 'get even* with the employee. 2. Discharge is a disciplinary action which is not 'corrective1 in nature. Therefore, discharge should be resorted to in two types of situations: A. Where the offense is of sueh serious 5 Harry Shulman, Umpire for the Ford Motor Company, stated this philosophy as follows: ". . . the object of indus trial discipline is future improvement, not retribution." (Opinion A-197> August l*f, 19^5). And Lloyd K. Garrison states: "We should look upon disciplinary penalties . . • not as punishments, but. as. one of a number of steps which must be taken to make men realize their responsibilities and to gear them back into the production -of the plant . From “Trends and Principles Established in Wartime.Bargaining." Management1 s Stake in Collective Bargaining (Personnel Series No. 81: New York: American Management Association, 19^), p* 2*f. 156 nature as tormake any other form of discipline inadvi sable.L ° ■ * B. Where other efforts to bring about correction have failed* In line with this theory, the Umpires feel that a minor infraction of a shop rule should result in a reprimand or a short layoff to warn the employee to correct his conduct. If the warning does not bring about a correction and the employee again violates a shop rule, a more stringent penalty should be given. If this does not impress upon the employee the impor tance of complying with.the rules, the next violation should bring a 'long* layoff (*f to 6 weeks) as a final warning. If this fails to impress the employee, the only action left is discharge. Of course disciplinary action cannot be reduced to a mechanical formula, nor willUany fixed pattern work satisfactorily in all cases.' George W. Taylor, in keeping with his coneept that the method of administration of a contract determines how people shall live together when they work, considers such a program as simple protection of the civil rights of employees. He describes the system of review of discharge eases in the hosiery industry as follows: Several kinds of infractions are considered to clearly warrant discharge for the first offense where guilt can be established. These ares assault on a member of supervision; leadership and direction of a strike in violation of the Agreement; theft; sabotage. Other offenses for which discharge has been upheld for the first offense have been; extreme abu sive language to supervision; assault on another employee where there is injury.and drinking or bringing liquor into plant. 7 h. T. Gierok, Arbitration _in. Industry (address made April 10, 19^6, mimeographed), p. 4. 157 In the absence of collective bargaining, the employer may discharge for any reason or for no reason. When this is done by a foreman or by a minor executive abuses frequently develop. Under the hosiery agreement, discharge is consxdered not an arbitrary privilege of the employer, but an unfortunate responsibility that must occasionally be undertaken as the only way to preserve effi cient operation of a plant. Discharges *to main tain discipline,* and to secure ’respect for management,* are not recognized since indiscrimi nate firings cannot be accepted as a substitute for inept management or for a proper personnel program. Nevertheless, employers are guaranteed by agreement the *free exercise of the right to employ or discharge any worker in accordance with the necessity of his or its business*; and any discharged employee is guaranteed the right of appeal to the impartial. chairman. Inefficiency has always been recognized as a valid reason for discharge. On the other hand, a single act of inefficiency may not merit discharge any more than a single error of judgment will ordinarily cause boards of directors to remove executives. When an employee is unable or unwilling to do his job properly, however, there is no alternative but to let him,go. The union refuses *to support inefficiency.* j It Is unusual for more than two or three discharge cases a year to be brought to the impartial chairman, yet more than twenty-five thousand employees are subject to the National Labor Agreement.“ Modern Industry, in a recent survey of plant discipline, verifies this. It reports a union leader as saying: “We have to file a grievance to keep the members satisfied. But if a member is caught red-handed in a violation of the rules, or if he*s been a wrong guy for a long time, neither the union officials nor the membership will go to bat for him. We can't pull the men out on a phony beef, and we don't want to clutter up the. record in the arbitrator*s or umpire* s office with a lot of cases that we. lose." "Tighter Discipline for More Output," February 15> 19^8, p. *+ 8. ^ Millis, editor. How Collective Bargaining. Works: A Survey of Experience in Leading American industries. (New York: The Twentieth Century Fund, .194-2)., pp. h6o46 i. Under the ad hoc arrangement, too, whether a plant has a formulated program of corrective discipline or not, most agreements include some stipulation for 'warnings before dis charges Cl) to formally notify the rule-breaker that the offense was noted and considered important; (2) to provide the offender with an opportunity to protest the charge if he does not feel it justified; (3) and, to furnish indisputable evi dence in case of review of the employer*s disciplinary action then or in the future. There Is no general rule applicable to all situations• Each practice varies in accordance with plant conditions, relationship of the parties, et cetera. Some contracts or oral agreements provide for but one warning; some specify that after three warnings for the same offense, discharge is automatic; and still others specify that unless the practice is cleared up within a given period, the employee may be discharged. Some companies reserve written notice for the second or third offense, with oral warnings for the first and second; whereas others use written.warnings for serious violations only, and issue oral warnings for minor infractions. All of these are illustrated by the cases in the next chapter. Whichever practice is utilized, however, in order to avoid possible modification of penalties in arbitration, management must be careful, each time, that there are no differences of treatment between different employees and different depart ments, If there are, the employer must be prepared to justify 159 the reasons for the difference."^ Another important caution the company must observe is that past practice within a department or the plant has not modified the rules and policy. If a practice is accepted Unequal justice causes severe morale difficulties in a plant and leaves the company open to a charge of dis crimination, Penalties are considered discriminatory by arbitrators where there is a failure to determine individual responsibility for a given act or where different penalties are meted out to two employees who participated equally. See Fruehauf Trailer 1 LA 507 (D. B. Whiting, February 13, 19*+6). In this connection, Lloyd K. Garrison said: "This is an impor tant matter, for in a great plant where foremen have the right to fix penalties the widest disparities may exist. One worker will be given a one-day layoff for something that another fore man will give a worker three months for. The situation becomes a matter of general knowledge and creates a great deal of emo tional difficulty. Of course, each case must stand on its own footing, but equal treatment for the same offenses should be the general objective.” Garrison, op. cit.. p. 2h* The differentiation may be for good reason, however, as has been pointed out by Shulman. He stated: "Normally, when other considerations are equal employees guilty of the same offense should receive substantially_the same treatment. But the object of industrial discipline is future improvement, not retribution. The Union does not generally contend that penalties should be imposed automatically without regard for circumstances peculiar to the individual employees. In prior determinations I have urged upon the Company that, in imposing disciplinary penalties, it should exercise a humane and states manlike discretion in each case rather than strike out auto matically; and that in this exercise of humane and wise discre tion, the employee1s past record, a reasonable judgment as to his future prospects, and a reasonable estimate of the effect of the possible disciplinary measures on the general situation are important factors. When such factors are taken into account— as they are also in our courts— different treatment for the same offense may very well result. Such civilized differentiation is not unjust discrimination.” (Opinion A-197j op. cit.). Also see infra, p. 161, footnote 12. 160 frequently and consistently it can become a condition of 11 employment recognized by both employer and employees. There are numerous cases which illustrate this in the chapters to follow. IV. SCOPE OP ARBITRATION IN DISCIPLINE AND DISCHARGE CASES Where arbitration is provided for, the scope of arbi tration may be limited to certain issues, such as whether dis charge was for proper cause or whether the reason given for the discharge was the real reason. In a contract where cause is defined, the arbitrator may have to decide the guilt or innocence of the employee involved as well as whether the act charged falls within the definition of the offense. Since most of the disagreement often centers around the original incident, this is not always easy to establish. Facts are entangled in conflicting testi mony and arguments, and are usually difficult to verify. 1 * i "A practice often grows up in a plant before the employer realizes it. It isn't easy to stick strictly to the rules. Sometimes an exception to a rule is the fairer solu tion to an employee relations problem. But unless the employer keeps track of how his rules are being enforced, he’s liable to find that the exception has become the rule.” Employee Relations and Arbitration Report. Vol. 2. No. 6, September 22, 19^7 (New York: Prentice-Hall, Inc.), p. 2. When the contract is silent on a point, an arbitrator may hold that a well- established, unprotested past practice governs. Examples Colgate-Palmolive-Peet Company. 2 LA 572 (J. J. Blair, April *+, lQifb) T infra, p. 25V, for discussion of such a case. 161 Allegations may be based chiefly on recollections of the affected participants or chance witnesses, long after the situation occurred. The parties may have different concep tions of the arbitrator's functions in this connection, more over, IflJhere verifiable facts are available, the arbitrator rarely has the power, or would wish to exercise, the liberty of substituting his judgment for that of the particular member of supervisory personnel involved; for he has had no oppor tunity to Judge the facts at first hand. In such a case, his inquiry may be limited to a determination as to whether a fair and complete investigation.has been made, whether preju dice or clear error existed, and whether employees guilty of the same offense have received the same or lesser discipline. Past practice of the parties may reveal that certain infractions are regarded less seriously than others and may serve as a clue to the "good faith'* or arbitrary attitude of 12 the employer. If the arbitrator has been given the authority See, in this connection, Southern Pacific Company. 2 LA 3^6 (E. B. Chappell, May 23, 19^+5) • In this case the Carrier's position cites a number of former rulings of referees to uphold its claim that the violation of the rules by the employee involved deserved discharge even though lighter penalties had been imposed on others for similar offenses. These are too lengthy to reproduce here. One excerpt may serve to sum up the point being stressed, however, as follows: “Responsibility for the safe operation.of its system and the safety of its employees rests on the carrier. This division [Third Division of the Kational Railroad Adjustment Board! has frequently held that it should not question the propriety of discipline meted out to employees or a dismissal unless the record shows the carrier acted in bad faith, arbitrarily and without Just cause. • . 162 to determine what punishment is proper, this point may be an important one. In general, unless there has been anabu.se of discretion on management’s part, the arbitrator will not upset a penalty, or modify-it. Here again it would be a case of sub stituting his judgment for that of management. Dr. Shulman, in the earliest decision -which he rendered as umpire for the Ford Motor Company, stated: . . . a word should be said about the powers of the Umpire in discipline cases. The Umpire has power, of course, to determine guilt or innocence. That is a question of fact to be determined by appropriate investigation. • • • The Umpire also has power to modify penalties imposed in the discipline eases. This is not an arbitrary power. The Umpire is not expected to sub stitute his own judgment for that of management. His power is to review the penalty and determine whether it was reasonable under the circumstances. Management has considerable discretion in the imposition of discipline. That discretion has not been transferred to the Umpire. His power is to modify only when the penalty is beyond the zone of reasonableness. Where severe penalties are all reasonable, the Umpire cannot alter the one selected by management, even though, were he in management’s shoes, he might have selected a different one. The reasonableness of a penalty depends, of course, on all the circumstances of the case: the nature of the offense, the prior record of the employee, prophesy as to his future behavior, effect on dis cipline and morale in the plant, and so on. [Italics not in the original]. Thus, In making his determination, the arbitrator looks to: ■ to Ford Motor Company. Opinion A-l (H. Shulman, June 3j 19^3). 163 1. The agreement itself (including, if necessary, its history and the background of its negotiation) — for the intent of the parties5 2. The past practice and relationship of the parties— to ascertain how the provision involved has previously been used; 3. The equities and circumstances of the particular situation. Where "cause1 * is used in the contract without definition, arbitrators are usually expected to determine whether the dis charge or disciplinary action was "just, 1 1 "equitable," and 1^- "reasonable"— all words subject to individual interpretation. So that even though an employee may be definitely at fault most often an arbitrator will tend to consider his discipline . in the light of his entire work record. And, where discharge is involved, if the record is good, or there are extenuating tIl Teller states: "In such a case it is doubtful whether the determination that a given infraction by an employee con stitutes 'cause' is a management function. The question is to be decided by the arbitrator, with the aid of evidence of cus toms in the industry and the practices followed in union- management relations generally, and the interpretations, if any, given the clause by the parties themselves. This is a case, then, of implied delegation of a management function." From 4 Labor Policy for America (New York: Baker, Voorhis Co.f Inc., 194-5)} p. 50. Leaving the definition open seems to give management more freedom, but, at the same time may create more controversy over its meaning. However, the scope of arbitra tion may be narrowed so that the final determination of this matter remains with management, and some contracts provide explicitly for this. See Manual of Labor Suoervi sion. **0:12 (Washington, D. C.: The Bureau of National Affairs, Inc., 19^5). 16b circumstances, the arbitrator may order reinstatement and suggest another discipline. One arbitrator made this very clear in his decision, as follows: It is ordinarily the function of an Arbitrator in interpreting a contract provision which requires Sufficient cause1 as a condition precedent to dis charge not only to determine whether the employee involved is guilty of wrong-doing and, if so, to confirm the employers right to discipline where its exercise is essential to the objective of effi ciency, but also to safeguard the interests of the discharged employee by making reasonably sure that the causes for discharge were just and equitable and such as would appeal to reasonable and fair-minded persons as warranting discharge. To be sure, no standards exist to aid an Arbitrator in finding a conclusive answer to such a question and, therefore, perhaps the best he can do is to decide what reason able man, mindful of the habits and customs of indus trial life and of the standards of justice and fair dealing prevalent in the c o m m u n i t y ought to have done under similar circumstances and in that light to decide whether the conduct of the discharged employee was defensible and the disciplinary penalty just.-1 - 6 Most of the criteria described here wri.ll be encountered in the cases analyzed in the following chapter. There, better than any description can provide, are the evolving principles y Modern Industry lists as one of its check-up tests for fair discipline, the following: r , Do your disciplinary acts comply with existing industry standards? Arbitrators and 'Umpires are guided more and more by community or industry precedents. Dismissal for an offense that is usually punished by suspension can result in reinstatement with back pay if arbitrated.** February 15j 19^8, p. 49* ^ Rilev Stoker Corporation. 7 LA 767 (H. H. Platt, July 11, 19*5777 Also: Michigan Steel Casting Company, 6 LA 678 (H. H. Platt, March SjlW). 16 5 by which ♦ ‘ arbitrators judge the exercise of management's representatives of their function and responsibility in main taining plant discipline.The cases show what arbitrators consider to be capricious or arbitrary actions, and what dis ciplinary punishment is considered reasonable under what cir cumstances. In this way, as Justin says, "The principle of ‘just cause* under the collective bargaining contract is thus being evolved.”1^ V. MODIFICATION OR REMEDY FOR IMPROPER DISCIPLINARY ACTION Some contracts specifically define the arbitrator's power to determine the compensation and amount of disciplinary action to be taken upon reinstatement and may require that the arbitrator simply decide the right or wrong of the discipli nary action. Whether or not the contract imposes a limitation on the right of the arbitrator to review or alter the penalty, arbi trators customarily hold that the usual remedy for unjust or incorrect discharge is reinstatement without loss of seniority rights or benefits, and, in many cases, back pay from the 17 ' Jules J. Justin, Arbitration: Precedent Value of Reported Awards (Washington, D. C.s Bureau of National Affairs, Inc., December 29, 19*+7) , 21 LBR 92. 18 _ Loc. crfc. 166 time of the discharge to the time of reinstatement.^ Some times, however, there may be a specific provision which limits 20 the arbitrator* s power. Ififtiere some discipline is evidently warranted, back pay is often denied as a warning to the employee that his record must be improved, inhere these matters are left to the arbi trator’s discretion, there is no standardized rule as to what an arbitrator is likely to decide. Special circumstances might alter any likely decision. In situations where no money loss is involved, but improper warnings have been placed on an employee’s record which affect his status, arbitrators may require at their discretion that the warnings be removed and the employee’s record cleared of wrongful charges. The next chapter will provide a correlated picture of the application of these remedies to the particular situations warranting them, according to the arbitrator's conception of the equities of the ease, within the limits of the governing contract provisions or plant rules. 19 In most cases earnings and unemployment compensation received between discharge and reinstatement are deducted from the back pay award. Sometimes, if the employee has been recalled to work during the appeal- negotiations and has refused to accept the temporary employment, a deduction will likewise be made. 20 Such as ”no award for back pay shall, go beyond the date of filing of the written grievance” (Ford Motor Co. con tract) or time limits of from four to six weeks, et cetera. The place has now been reached in this study where the arbitrators can.best speak for themselves, by way of the cases which they have decided. Accordingly, the next chapter is devoted wholly to this purpose. CHAPTER IX ABSENTEEISM I. PURPOSE OF THE CHAPTER This chapter offers an experimental approach to the analysis of arbitration cases for the purpose of determining the principles which move arbitrators to make the particular decisions which.they do* The chapter begins with a short over-all.survey of the whole problem of absenteeism in industry— the subject selected for intensive analysis. Following this background material, excerpts from the arbitration decisions rendered in cases con cerning absenteeism and its variants are provided and dis cussed to illustrate the principles utilized or developed by arbitrators. Analysis of the cases indicated the particular classi fication employed, providing a logical approach, although not necessarily the only possible one. An outline is provided before each major division to serve as a guide to the discus sion of the cases which follow. The alphabetical index of eases in Appendix C will be found helpful as a means of cross-reference to the discussion of other portions of a particular ease, where the case has been examined for more than one principle. The chapter closes with a summary of findings. 168 169 II* SECTION A. GENERAL DISCUSSION AND BACKGROUND The problem of absenteeism is one of the most serious affecting modern industry* Absenteeism interferes with pro duction, reflects lowered morale and dissatisfaction on the part of the employees involved, and. impairs group efficiency and stability* Management, the absentees themselves, and the employees who must be shifted around Cor, in some cases, sent home) are all affected thereby* 1. Definition Although the definition of absenteeism varies from study to study, the one quite frequently used and most appli cable to this investigation is the definition employed by the United States Bureau of Labor Statistics, as follows: Absenteeism is the failure of workers to report on the job when they are scheduled to work* It is a broad term which is applied to time lost because sickness or accident prevents a worker from being on the job, as well as unauthorized time away from the job for other reasons. Workers who quit without notice are also counted as absentees until they are officially removed from the payrolls.1 Under this definition, excused, absences, just as much as unauthorized time off, are included in the term "absenteeism." The A B C of Absenteeism and Labor Turnover (Special Bulletin No. 17*? Washington, D. C.: U. S. Department of Labor, Division of Labor Standards, 19^), p» 2. 2. Measurement of Absenteeism A certain amount of absenteeism is, of course, inevit able, in view of the human factor involved. What industry is seeking to accomplish by way of restrictive contract provisions and plant rules is the control of unnecessary absenteeism. It is of some interest to note the formula recommended by the Bureau of Labor Statistics for computing absenteeism in various plants. This formula is: Man days lost Absenteeism s — “---: ------- -— , Man days worked * ■ man days lost This formula provides a start toward a common and comparable basis for measuring absenteeism in different plants and at 2 different times. 3* Extent of Absenteeism in Industry Today Industrial absenteeism fluctuates greatly depending upon the variables of season, climate, geography, local plant or Industrial conditions, general economic or political atmos phere, such as phases of the business cycle and conditions of international unrest. During, the recent .war., it was not at all uncommon for Controlling Absenteeism (Special Bulletin No. 12; Washington. D. C.: U. S. Department of Labor, Division of Labor Standards, 19^3), p. 13• 171 absenteeism to run as. high as 10 per cent regularly. In peace time, It probably averages between 3 per cent and 6 per cent 3 of total working time. The Division of Labor Standards has commented that: Nobody really knows what ‘normal* absenteeism is or should be. A curbstone estimate has placed it at 2 or 3 per cent. Yet some companies with a 3 per cent rate have set up extensive programs to curtail it— on the theory that any that is preventable is too much. Others with 5 or 6 per cent think it is normal or at least nothing to worry about at the present time.4’ Trends Observed The same governmental department has made a careful study of absenteeism, which reveals at least five discernible trends s Absence-prone employees. The industrial psychologist has determined that certain employees in the plant are respon sible for a high proportion of the accidents. And, furthermore, 3 Dale Yoder, Personnel Management and Industrial Relations (New Yorks Prentice-Hall, Inc., 194-2) ? p. 54-9. These conclusionsare confirmed by numerous studies on absenteeism, although the top percentage sometimes is as high as 8 per cent. See, J. E. Walters, Personnel Relations (New Yorks Ronald Press Company, 194-5) > p. 26*+♦ L Controlling Absenteeism, o p. eit., p. 9. J Arbitration cases dealing with "absence-prone employees" are analyzed below in the section of this chapter entitled: Excessive Absenteeism. See infra, pp. 180 et soa. 172 these employees tend to be the "repeaters.1 1 The term used to 6 describe such employees is "accident-prone." In the same way, there appear to be workers who are "absence-prone," and who account for at least 75 per cent of the recorded indus trial absences. Generally, from 10 to 20 per cent of the employees are responsible for approximately, three quarters of the absences. These workers may be more susceptible to colds or other house-confining illnesses; they may be burdened with family difficulties, exhibit a poorly-developed attitude and sense of responsibility toward the job. Relation of absenteeism to normal breaks in the work 7 schedule. There appears to be a high incidence of absentee ism on certain days of the week or month. In order of fre quency, these ares (a) the first and last days of the work week; (b) the day after payday; (c) the day before or the day after a holiday; (d) Saturdays and Sundays when the plant is on a seven-day week. Effect of season and weather on absenteeism rates. Seasonal absenteeism trends are equally evident. The period ^ Joseph Tiffin, Industrial Psychology (New Yorks Prentice-Hall, Inc., 19*+7), p. *+21. 7 Arbitration cases involving such types of absences are analyzed in the section of this chapter entitled:. Gases Evidencing Tendency Toward Absenteeism.on Particular Days of Week. See infra, pp. 191 et sqq. 173 of Christmas shopping, the "spring fever" period, the "dog days of summer" are examples in point. During such periods the absentee records run two or three times the average of the other months. Extremes in weather or climatic conditions also contribute to sudden rises in absenteeism. Correlation between absenteeism and age, sex, and Q experience of workers. Women, older workers and youngsters have a much higher absence rate than men, especially those men who have been in.industry for some time. This was particularly true during the war. Such problems as housing, care of chil dren, and the necessity of housekeeping in addition to other employment naturally affect women workers more acutely than men. Youngsters, older employees, and women, who are ordi narily considered marginal workers, are likely to be out more often than the average-aged male worker, because of the greater problems of adjustment to the new industrial environment which they face. However, it should be added, that often when these groups become fully integrated into the industrial force, they may be more dependable in regularity of attendance than the average worker. Relation between absenteeism and difficulties of .job o Arbitration cases considering these problems are analyzed in the various sections of this chapter on absentee ism. 1 9 and location. Disagreeable job conditions or work requiring heavy exertion, and difficulties involved in reaching the plant or department where the employee works will tend to cause high absenteeism due to lowered morale and the drain on the physical fitness and strength of the worker. 5. Avoidable and Unavoidable Causes of Absenteeism During the second World War, several of the government agencies charged with the responsibility for facilitating war production studied the absenteeism problem. Many of their findings are just as pertinent in peace as during the war. Analysis of these reveals that the causes of absenteeism tend to divide logically into two groups: those which are "unavoid able,” and those which are "avoidable.” Unavoidable absences, include the emergency situations, such as sudden illness, injury, breakdown of transportation, weather conditions which completely interfere with arrival at the plant, et cetera. Also considered.as unavoidable are such required service as jury duty, and court appearances, although advance notice can usually be given by the employee on this kind of absence. Arbitration cases dealing with these conditions are also analyzed in various sections of this chapter. 175 Avoidable absences, because they can be controlled or remedied, are more of a concern to management. Included under this heading are three separate types of absences: (1) Those -which arise primarily from managements deficiencies, such as defective scheduling and planning of pro duction, neglect to consider the needs and desires of the employees, Inadequate or careless supervision, et cetera. (2) Those caused by employee .-neglect and division of interests. These, in turn, divide themselves into excusable or inexcusable absences. There are personal affairs, for instance, such as births, deaths, and weddings in the immedi ate family which are generally provided for in most contract 10 provisions; whereas, other activities which can ordinarily be taken care of during the employee's free time are con sidered to be inexcusable, such as shopping, pleasure trips, and social affairs. (3) Those which are the result of morale-deteriorating factors, occurring both outside and within the industry or plant. External factors such as inadequate housing, distance from the plant, poor or uncertain transportation facilities, and lack of recreational opportunities for purposes of proper rest and relaxation, all conspire to increase absences. See pp. 21: 5 et sqq. 176 Within the plant, faulty selection and placement, long hours and excessive overtime, undesirable conditions surround ing the job, including inadequate lighting, heating, and ven tilating facilities, excessive monotony, noise, vibration and disagreeable odors, et cetera, all conduce to absenteeism, not only directly, but indirectly. One writer on the subject stated: The specific causes of absenteeism are numerous and devious. To attribute absenteeism in a given case to illness, for example, may result in over looking the fact that incorrect job placement may have led first to boredom, then to fatigue, and then to physical illness.11 There is further the element of insufficient monetary incentive. This may make the employee indifferent to regular attendance, or create interest in outside work as a supple mentary source of income, with the possible consequence of interference when the needs of the other business require the employee's energy and attention. 6. Control of Absenteeism Employers who are faced with a problem of high absentee ism tend to approach the control of it from three different angles: Michael J. Jucius, Personnel Management (Chicago: Richard D. Irwin, Inc., 19^7). p. 6 2 9. Although more than half of all absences are attributable to illness or accident, according to most studies, this element'of the "real reason" underneath the "apparent reason" must be recognized. 177 (1) The incentive approach, (2) The adjustment of conditions, (3) The penalty or punitive approach. Even though this study does not consider the first two < r methods in any great detail, it is worth noting that employers frequently utilize them because of the constructive effect accomplished. Bonuses, rewards, prizes, honor rolls, days off for perfect attendance are all quite effective means toward reducing avoidable absences, according to the findings of the Division of Labor Standards in its study of 200 plants concerned with solving their absenteeism problems. Discussing the relative merits of the penalty versus the incentive approach during wartime, this Division states: Penalty lay-offs and discharges, in time of labor shortage, tend to aggravate rather than reduce pro duction losses caused by absenteeism. Workers are likely to welcome the vacation thus offered— and they can get another job when necessary— or become con vinced by such penalties that their services are not essential. If the goal of absentee-control programs is to keep workers on the job producing, penalties do not seem to offer a practical answer at the present time*12 In peacetime, when the supply of labor on the market is more plentiful, this attitude evidently still appears to hold true, as indicated in the following observation: As might*be expected, fines and other exacting penalties have met with varying success, and there 12 Controlling AbsenteeismT on. cit., p. 18. 178 is a growing conviction that they do not constitute the most desirable method of reduction or elimina tion of tardiness and absences. Considerable feel ing of resentment is aroused by them. . . .13 However, it is well recognized that in cases of habit ual, inexcusable and unauthorized absenteeism, management’s power of discipline and discharge is a legitimate and effec tive weapon. Arbitrators will generally uphold the right of management to control absenteeism as one of its basic preroga tives. Hence, not only contract provisions, but plant rules also contain regulations on absences. Such disciplinary measures as written reprimands, warning notices, temporary layoffs, docking of pay, fines, and, in extreme cases, dis charge or loss of benefits, are typical of the penalty approach to the correction of absenteeism. Unions, of course, are ever vigilant in protecting the rights of employees in this regard, and in qualifying manage ment’s prerogative to mete out penalties. It is this basic conflict between the prerogatives of management to deal with an internal problem of discipline, efficiency, and morale and the desire of the union to protect the gains and status of the employees, which creates so many grievances culminating in arbitration. The arbitrators seek to harmonize this lo Gordon S. Watkins and Paul A. Dodd, The Management of Labor Relations (3d ed.; New Yorks McGraw-Hill Book Com pany, 1935), p. 272. 179 conflict, recognizing the difficulties faced by management, while, at the same time, seeking to preserve the rights of employees. The responsibilities and duties of both manage ment and employees are the considerations which are developed as principles in the opinions of the arbitrators who are called upon to decide the justice of a particular discipli nary action meted out for absenteeism. III. CLASSIFICATION OF ARBITRATION CASES INVOLVING ABSENTEEISM The cases selected for intensive analysis fall into three categories, as follows: (1) Those cases where the main issue is excessive absenteeism. (2) Those cases in which the primary issue is whether the absences were "unexcused” or ^unauthorized.“ (3) Those cases in which the denial of benefitsT such as holiday, vacation, or bonus pay, are involved as a penalty for either unexcused or excessive absenteeism. This category is separated from the other two because it deals with the question of the right of the employer to deny or deprive employees of particular economic benefits as a penalty for absenteeism. 180 IV. SECTION B. EXCESSIVE ABSENTEEISM 1. General Discussion Miat constitutes excessive absenteeism? No general rule can be laid down that any specific number of absences isw excessive. Two tests are generally applied. The cases studied indicated that the primary tests are quantitative first, then qualitative. The absentee record is initially examined in terms of frequency, regularity, and length of absences. The arbitrator seeks to determine; (a) what is the "normal” amount of absenteeism in the particular depart ment and plant; (b) what is the ratio between the employee*s absences and his total scheduled attendance within a given period; and (c) what is the ratio of his absences to this total employment time with the company. If the results obtained from applying the above cri teria confirm the charge of excessive absenteeism, then quali tative tests are applied. These, in turn, fall into three categories; (a) to what extent does the absenteeism inter fere with productive operations and efficiency; (b) what are the causes of the absences and the circumstances surrounding them; and (c) has corrective discipline in the form of prior warnings and lesser penalties been involved. Guiding as well as limiting the arbitrator, of course, are the plant rules on absenteeism, the pertinent contract provision or provisions, and the employer’s attitude and 181 method of dealing with similar situations in the past. As examples of such plant rules, the following demon strate some industrial concepts of excessive absenteeisms Absence amounting to more than six days per year (for reasons other than serious illness or injury) is considered habitual absenteeism.14 An employee who accumulates more.than three days of unexcused absence in any month is subject to dismissal.-7 More generalized rules appear as follows? Punctual and regular attendance at work is one of the conditions of employment which if not observed/-will be considered good cause for dis charge. Repeated absence cannot be allowed, and any absence without a good cause will be considered breaking a rule. Habitual offenders may be penalized.1? And a rule which indicates the successive disciplinary steps to be expected if attendance is not improved reads: Employees remaining away from their jobs too large a percentage of the time (written leaves of absence excepted) shall be removed from their regu larly assigned jobs and placed on the spare floor. They shall remain on the spare floor for a period ^ Employee Relations and Arbitration (Vol. IX, No. 16, February 9j 19^-8. New Yorks Prentice-Eall, Inc.), p. 2. ^ Cameron Manufacturing Company. *+ LA 185 (L. R. Guild, July 11, 19H-6) , p. l86. ^ International Shoe Company. 7 LA 9^-1 (D. E. Nhiting, May 5, 19^7), p. 9^2. Buffalo-Springfield Roller Company. 8 LA 212 (C. G. Hampton, May 23, 19*+7)> p. 213. 182 of thirty (30) working days during which time they will have to bring their attendance records to the average of the department. If they do not accom plish this they shall be discharged. Before being removed from their regular job, at least one warn ing will have to be written or read in the presence of the worker affected and representatives of the Local Union whoftshall sign as a witness and who will retain a copy.-10 However, both as to plant_rules and contract clauses, few agreements are very specific in interpreting the meaning of excessive absenteeism as such. Much latitude is permitted the arbitrator in interpreting standard clauses on absences and leaves of absence. When the clauses do not seem to fit the situation very well, the arbitrator will consider them in the light of reasonable principles of equity, both as to the management and the employees involved. For instance, in a dispute over the meaning of a con tract clause which referred to absence without notice for seven consecutive days as cause for discharge, the question before the arbitrator was whether it applied to an employee who was intermittently though frequently absent, rather than 19 consecutively. 18 Pacific MillsT 3 LA M (W. P. McCoy, May 9, 19*+6) > ^ Reynolds Metals CompanyT 7 LA 755 (P. A. Carmichael, April 22, 1947). The arbitrator stated: "A man might cause more trouble by these latter 1 intermittent ^though frequent absences] than by a straight run of seven absences; so it would be less a question of the consecutiveness than of the right of the Company to deal with intermittent absences. The contract, subject to its other provisions, gives the Company the right to 'discharge any employee for proper and just cause.'" [This case will be discussed more fully under “chronic absentee ism," infra* p. 189]. 183 Another example of a contract provision •which necessi tated an equally hroad interpretation stated: Unless an employee who has been absent for an entire pay period has made previous arrangements for a sick leave or leave of absence, his name shall be removed from the payroll.20 When specific frames of reference, such as clear-cut plant rules or contract provisions, are lacking, the arbi trator is considerably influenced by the accepted practice in the plant and in the industry. In a recent survey of plant rules, it was disclosed that employers are not all in agree ment on what is the right approach to excessive absenteeism. They seem to adhere to one of three different points of view, as follows: There are those who prefer to consider each case individually on its own merits and favor no rigid rules. For instanbe, they may feel that special consideration should be 21 given to a "good1 1 worker. The second group appears to favor the establishing of rigid standards, and, in general, believes in penalizing with out reference to the employee's work record. The plant rule Goodyear Clearwater Mills. 5 LA 619 (W. P. McCoy, December 19, 19^6), p. &20. Infra, p. 1§£« ^ An example of this is to be found in the case of the Standard-Coosa Thatcher Company. 1? LRR Man.2 6I§ (W. P. McCoy, April 10, 19^+5), in the Company’s statement: "If she hadn't been [a good worker] , we wouldn't have put up with her absences.," (p.2616). l&h cited above which stipulates an exact number of days per year, or one which states: “Absence of 10 per cent of the working schedule for three months* period is considered excessive absence and subject to penalty,'* are examples of the defini tive approach to excessive absenteeism. The third group tends to strike a medium, and, while not limiting itself by a specific definition of excessive absenteeism, in practice, this group tends to penalize chronic absentees consistently. An example of this point of view is found in the employer who will state that he is “not concerned too much if the absence of an individual employee does not exceed one day per month," but who believes strongly that when two employees are accused of the same violation, even if one is a “good" worker and the other not so good, “the same medicine, good or bad, must be administered." Thus, “the employer decides when absences are chronic; when he does, the 22 penalty is the same for all workers." Naturally, these variations, which.are quite wide, lend themselves to an equally wide variation of interpretation by arbitrators. The following section will il3.ustrate this, as well as the arbitrator's approach to the question of excessive absenteeism in all its facets. 22 Employee Relations and Arbitration, loc. cit. 185 2. Outline of Factors Considered by Arbitrators Analysis of the selected cases reveals that arbitrators are most concerned with the following considerations in attempt ing to determine whether absenteeism is excessive: A, Whether the absences appear to be chronic. that is: (1) Frequent or continuously intermittent absences (a) Above the average of the department or unit (b) Usually accompanied by little or no notice (c) Excuses for which are not well proven (2) Regularly reoccurring on particular davs (3) Prolonged or irregular due to continued ill ness (a) If so, is illness valid or merely an excuse (b) Is employee physically fit to resume work and perform his regular duties (c) What are the employee’s rights in cases of extended illness B, Whether corrective discipline has been tried with any salutory effect (1) Have warning notices been issued (a) Were they proper and deserved 186 (b) Does company enforce its warning posi tively and fairly (2) Would further corrective discipline be likely to have any effect C. Whether the charge of excessive absenteeism is proper; (1) Was it introduced extraneously to provide grounds for discharge when other grounds were insufficient (2) Is excessive absenteeism the charge made, when there is ample evidence of such a charge (3) Was it raised early enough in the grievance proceedings 3* Gases Evidencing "Chronieity" as the Principle Factors Arbitrators appear to consider absences amounting to 10 per cent^ or more of employment time to be excessive. ^ ££• supra. p. 171. 2*f Bethlehem Steel CompanyT 5 LA 578 (J. Brandschain, November 27s 19^6), the employee was absent thirty-three.times (unexcused) in a period of three months, or well over one third of his working time; Campbell Soup Company. 2 LA 27 (J* B. Lohman, February 23> 19^6), the employee's record indicated absences amounting to 30 per cent of his employment ..time; B. F. Goodrich Company. 2 LA 27° (J. J. Blair, March 27, 19**o) j employee was 187 unless unusual mitigating circumstances are involved, such as lengthy personal illness. There are two outstanding reasons for this. One, is the interference with plant operations that results, and the second is the reflection it casts upon the employee’s attitude 25 and sense of responsibility toward his employment. These reasons have been expressed in a number of the decisions studied. In one case, the arbitrator states: No mill can operate successfully without regular attendance of the employees. Irregular attendance, by cutting down on profitable operations, hurts not only the Company, but the employees as well. Wages are paid out of profits. The employee who by his or her actions interferes with profitable operations creates a situation which not only prevents increases of wages for the other employees but actually (Continued) absent almost two and a half times the plant average for his job classification; Goodyear Clearwater Mills. 5 LA 619 (W. P. McCoy, December 19 > 19^+7), absenteeism was 20 per cent of time in one year and over 33 per cent of time in second year; Spencer. Kellogg and Sons. Inc., 1 LA 291 (M. J. Miller, January 3, 19^5)> employee was absent 103 times in a four year period; U. S. Rubber Company, 6 LA **08 (W. P. McCoy, February 11, 19h- 7)> absenteeism was 3»«7 per cent of the working time. (Other aspects of these cases will be considered below under t^.e appropriate headings.) ^ As expressed in one discussion of this point: ’ ’Chronic unexeused absence is most disturbing to group effi ciency and morale. It makes an individual unacceptable on a work team, no matter how much he has to offer when he does come to work. More than any other form of absence, such genuine absenteeism indicates both lack of teamwork and poor personnel administration in the organization.” Paul Pigors and Charles A. Myers, Personnel Administration (New York: McGraw-Hill Book Company,‘ 1947..), p.. 86. 188 jeopardizes their jobs. In another case, where an employee was regularly absent for second-shift Sunday work on the basis: Cl) that his week day ride was not available; (2) that he lived thirteen miles from the plant, and (3) that public transportation was not feasible since it would require a long and lonely walk in the early hours of the morning, the same arbitrator stated: . . * it is the duty of employees to work when scheduled and to arrange their living places or working places so that they can do so.2? In a case where the employee took it upon herself to stay out on the claim that she believed there was insufficient work for her to do, the arbitrator pointed out that it is the prerogative of management to make such a determination, and: . . . The fact that she may have believed there was not sufficient work on her particular machine to make her presence necessary would not justify her absence as it is evident management was the sole judge as to whether there was sufficient work and, 28 consequently, had the right to rely on her presence. Goodyear Clearwater Mills. 5 LA 620 (W. P. McCoy, December 19, 19*+6). The arbitrator upheld the Company* s dis charge because the incident culminated an extensive series of unexcused absences in spite of the fact that the Company’s cam paign against absenteeism was well-known and vigorously enfaroed. 27 Republic Steel Corporation. 6 LA 89 (W. P. McCoy, January l1 *, 19*+7) • The arbitrator commented that although the reasons for the absence were understandable, they do not release the employee from his obligation to conform to work schedules. pg Buffalo Weaving and Belting Company, 2'LA 60 (F. H. Brown, December 11. * Mere again a large number of unexcused absences militated against the employee. In 19^?, the employee had twenty-eight unexcused absences over less than an eight month period. 189 The same principle, that excessive absenteeism consti tutes a serious interference with production requirements, was set forth as follows by an arbitrator in another cases . . ' There is little question, but that such an irregular attendance record could have been a source of considerable embarrassment to the company in scheduling its production, , • • However valid these ["the employee*s personal]'" considerations may have been, it does not follow that the company must subordinate the scheduling of its operations to the pq personal and unindicated appearances of an employee. ' And, again, the principle was enunciated by the arbi trator in the Reynolds Metals Company case, id 10 stated: w l / [The employee] was absent without notice repeatedly, at cost to the Company, and in spite of warning to him. The Company not only warned him but called on his Union representative to appeal to him. There is no evidence of discrimination or caprice in the deci sion to discharge him or in the treatment he received before the discharge. Even if he had not been warned, he must have realized that his laxness was trouble some and that the Company was not bound to tolerate it— or if he did not realize this, he must have had a misconception of an employee*s responsibility. He was in fact under a contract with the Company, if not also with the Union, whereby he was obliged to perform services under conditions made known to him by his employer and also indicated in . . . the contract between the employer and the Union. Having failed to conform to the conditions prescribed, he forfeited Campbell Soup Company. 2 LA 29 CJ. D.'Lohman, Febru ary 23, 19^6). She arbitrator found that * * The attendance record of the aggrieved is spotty and difficult to justify. The number of excused absences are plentiful, while the absences without notice are even more numerous. • . • the length of the absence I The instant one] and the explanations thereto were difficult for a reasonable person to entertain in the light of the employee's irregular attendance record.** (p. 29) • 190 his right to his job.^ Another arbitrator emphasized the sam'e basic principle in the Cameron Manufacturing Company case, as followss . . . Modern manufacturing requires the presence of those employed to do each task. Unavoidable absences, promptly reported frequently involve major rearrange ments of the day’s work. An individual as skillful as • • . [this employee] can not come or stay away in a casual manner without disturbing the plant manage ment and other workers. It appears that he could have reached the plant. It is evident that he received repeated warnings. Management clearly attempted to discover what was troubling him and acted only after meeting with rebuffs. Credit is due his fellow workers and union officers who periodically 'reported him off* to his foremen. This, however, can in no way make up for his own lack of interest and cour tesy.-^ While agreeing, in principle, that "outside work should not interfere with one's employment by the Company" [p. 279 ] an arbitrator in another case recommended modification of the discharge of an employee, because he felt that clear proof was lacking that outside work had actually interfered and was the cause of the employee's absences. Accordingly, he ordered Reynolds Metal Company. 7 LA 756 (F. A. Carmichael, April 22, 194-7) • This was the case, previously cited in foot note 19» above, where the issue of consecutive absence as a sole basis for discharge was discounted by the arbitrator, as irrelevant, since "If seven consecutive unreported absences were requisite, then an absentee might be immune if he took care to appear just one day out of every seven.; ..." (p. 755). 33- Cameron Manufacturing Company. ^ LA 186 (L. R. Guild, July 11, 194-6). Transportation difficulties'and veteran status were considered by the arbitrator, but did not offset employee's indifferent attitude. £f. ante footnote 27. 191 reinstatement without loss of seniority, but also without back pay as a warning to the employee: • • • that he is obligated to be more regular in attendance and that his outside business interest should not be permitted to conflict with his respon sibilities as an employee of the company. 3 2 Cases Evidencing Tendency toward Absenteeism on Particular Days of Week or Work Period Absenteeism records which reflect a tendency on the part of the employee to be out just after pay-day prior to or immediately after weekends or holidays, or both, and on Saturdays and Sundays (when these are scheduled for work), are usually regarded by arbitrators as a fairly significant indi- 31 * cation of lack of responsibility. B. F. Goodrich Company. 2 LA 279 (J* J* Blair, March 27> 19^6). The employee lost a total of 23 days work, for fif teen of which, according to the Company’s statement, he received payment. The average for the employee’s classifica tion ^ plant guards/ was ten days. Despite the arbitrator’s findings concerning the employee's "irregular attendance, his interest in the shoe shop (^dwned by his^, and his employment in the shop on the day-when visited by company representatives, /facts which mad§# it seem reasonable to believe that /the) ■absences are due, in part, at least, to his outside employment," the arbitrator decided that the loss of back pay would be suffi cient warning to the employee "to observe his responsibilities to the company." 33 Note discussion, supra. p. 1?2. oli Joy Manufacturing Company. 6 LA 2+30 (J. J. Healy, July 31» lWo). Here the employee*s record revealed forty absences without explanation in 191 +5J twenty-seven of which occurred on Friday nights, which happened to be the night 192 As previously indicated, even where the employee would seem to have some justification for repeated absences on the same day of every week, such as lack of transportation on that day coupled with distance from work, it will be considered his duty to try to make some rearrangement of facilities so that 35 he may begin to report to work regularly when scheduled. Likewise, since it is unusual for illnesses to reoccur with particular regularity, ill health is a difficult claim to sustain as an excuse for regularly-spaced absences.^ 3^ (Continued) after pay-day, among his other offenses in connection with absences. The arbitrator states: "The facts themselves con stitute the arbitrators analysis." Also see: Ingalls Iron Works Company. Inc.. 8 LA 26 (R. J. Wagner, June 27*' 19^7) , therein two employees, despite ample warning, consistently failed to appear on the first day of each workweek after transfer to the third shift. Argument that their foreman had agreed to excuse them was held invalid by the arbitrator. ^ Republic Steel Corporation. 6 LA 85 (W. P. McCoy, January l1 *, 19^7)* The employee was absent on every one of the eleven Sundays that he was scheduled to work during a certain period. See supra. p. 188 for discussion of principle. ^ Goodyear Clearwater Mills. 5 619 (W. P* McCoy, December 19, 19^6)• Of fourteen Saturdays on which the employee was scheduled to work, she worked only two. Her attendance record as a whole was very poor. Warnings had been given. Claims of illness, while..possibly accounting for one instance, could not explain other instances. The Union*s reli ance on the wording of a section of the contract indicating an employee must be absent for an entire pay period, is dis counted, since if that were the case, says the arbitrator: 'then, every employee in the mill could announce that they were going to be absent every Saturday, and. the mill would thereupon go on a forty-hour week in spite of all management could do.*1 (p. 620). Also: Pul Trnsm Standard Car Manufacturing Company. 2 LA 509 (J. B. Courshon, October 31, 19^5). 193 5. Cases Involving Prolonged Absenteeism or Irregular Attendance Due to Illness Under most circumstances, if personal illness is reason ably substantiated, it is given considerable weight by arbi trators, A doctor*s certificate that appears to be bona fide, especially if it can be checked with the doctor himself, will not usually be questioned, even though the Company may not be satisfied with it. This principle was put forth in one case as follows: . . . Generally speaking, a doctor's certificate is taken as satisfactory evidence of illness. In the absence of any significant impeachment of • • . [the doctor] or his statement, it is the arbitrator's opinion that this evidence must be taken as a proper demonstration of cause for absence.3/ However, where the offered doctor's certificate is undated or otherwise vague, the arbitrator will in most instances decline to accept it as satisfactory proof of ill ness, especially where the employee already has a bad 37 Bell Aircraft Corporation. 1 LA 282 (J. A. Griffin, n.d.). In view of the proof of illness, the arbitrator ordered the employee reinstated with back pay, but with four days deducted, since it was established that the employee had been absent on the average of one to five times a month over a considerable period of his employment, and it would, thus, be unfair to require payment for a full month's work. Cf. Pullmen-Standard Car Manufacturing Co., 2 LA 509 TJ. B. Courshon, October 31j 19^5)• 19k- 38 absentee record* In general, then, It may be said that the frequency with which illnesses are used (especially minor ones or those of short duration) as a subterfuge to secure time off and pay for not working makes it necessary for arbitrators to consider such absences in the light of the employee1s entire record. If there is a history of chronic absenteeism, or if the employee makes only a half-hearted effort or no effort at all to report absences, the arbitrator will give little weight 39 to the excuse.-' So that irresponsibility and laxity in Goodyear Clearwater Mills. 5 LA 619 (W. P. McCoy, December 19, 19^o)• Two employees contended that they were sick on May 13, the day they were absent without excuse, which resulted in their discharge. One of the employees offered in evidence a doctor's certificate dated December 3, that he had treated her "in April for boils." The arbitrator refused to accept this as any valid evidence of her alleged illness on May 13. The other employee offered a doctor's certificate, undated, that the doctor had treated her “for recurrent appen dicitis in April and June, 19l +6." To this the arbitrator stated flatly: "This certificate is equally worthless to show • . . she was sick on May 13*" See supra. p. 192.. 39 U. S. Rubber Company. 6 LA ^ 8 (W. P. McCoy, Febru ary 11, 19^+7) j (Grievance of employee Branham). The employee was in the habit of taking from one to three days off every month. He had previously received a disciplinary layoff of six days for unexeused absenteeism, and, in addition, he received two further warnings for similar offenses. In each case he claimed illness as an excuse, but failed to produce a doctor's certificate upon the Company's request, and otherwise failed to establish that he was in fact sick.enough to justify absence. The arbitrator in upholding the Company*s discipline of the employee stated: "The sort of illness that excuses absence is hot the sort that permits recovery in time to travel twenty-seven miles on the same day for a date. Not every case 195 connection with absences will probably outweigh authentic proof of illness where the record indicates little possibility of improvement. Another consideration with which arbitrators sure con cerned in cases involving prolonged absence or irregular attendance where illness is a factor is whether, in view of the alleged poor health, the employee is physically or men tally fit for continuance on the job. On this point, the arbitrator in one case stated: . . . There is no obligation upon the Company to keep an employee at work who can do only selected and limited work when it is able to retain in his place, a worker who has no physical, disability and, can thus do all the work rightfully expected of him.^"-1 - b2 Another arbitrator in three separate eases reiterated ^ (Continued) of 'feeling bad,' 'having a cold,' of 'being sick,* is justifi cation for absence." (p. *flO) See also: Spencer Kellogg & Sons. Inc., 1 LA 291 (M. J. Miller, January 3, 19H-5) : Pacific Mills. 2 LA 326 (¥. P. McCoy, April 19*+5) » grievance of E. Dooley. L lq Atlantic Foundry Company. 8 LA 807 (Albert I. Cornsweet, September 10, 19I+ 7). Although the employee was found to have been actually ill, .there were numerous unreported absences which he could not explain away. Furthermore, the employee's own doctor reported his malingering at the time of his discharge. The arbitrator upheld the Company's action. Bethlehem Steel Company. 5 LA 582 (J. Brandschain, November 27j 194-6). The employee was absent thirty-three txmes in a period of three months, apparently because of the removal of a kidney. The arbitrator upheld the discharge on the basis stated above. Lo Standard-C 00 sa-Thatcher Company. 17 LKB Man 2677 (¥. P. McCoy, April 10, 19*+5) • In. this case, the arbitrator did not, however, sustain the discharge, because he was 196 the principle, as followss Of course, habitual absence, even for genuine illness, might justify discharge if it threatened to continue. The company is under no obligation to continue in its employ chronic invalids. [ Standard-Coosa-Thatcher Company ] .^*2 I understand and concur with the company in its contention that it cannot continue on its payroll employees who are continually absent even though those absences are for genuine illness. A plant cannot operate without some assurance that its employees will come to work. Excessive absence even for illness over a long period of .time would justify a discharge. {Pacific Mills}. 4-2 . . . while genuine illness justifies occasional absences, where an employee is so habitually ill or suffering from injury as to make his services of no value to the Company, the company is under no obli gation to, retain him. [Celanese Corporation of America] . ^ 2 ^ (Continued) convinced by the facts that the causes for the habitual absence had been removed prior to the discharge, and that, therefore, the employee was no longer likely to be a handicap to the Com pany in its production requirements. This qualification is a typical one for this arbitrator and reoccurs in all his cases where the facts indicate justification for the distinction. Since the facts are somewhat.involved, they have not been cited here, and the reader is referred to the case itself. Pacific Mills. 3 LA l>+3 (W. P. McCoy, May 9, 19*+6). Here again the employee corrected her absenteeism to such an extent that she brought it down to under the plant average. The arbitrator, therefore, believed that the principle was likewise qualified by the favorable future outlook. Celanese Corporation of America. 9 LA lU-5 (W. P. McCoy, December iS, 19^7Yl However, in this case, where the employee was absent for a total of approxi mately fifteen weeks out of a seven-month period, and appeared “prone to illness and accidents,*' the arbitrator viewed this as a situation which would probably continue, to impair the profit able operations of the company. Also sees U. S. Rubber Com pany, o LA ^08 (W. P. McCoy, February 11, 19*+7), grievance of employee Raley, who allegedly suffered from asthma and received a six-day layoff for failing, to report for work after repeated warnings that further absences would result in disciplinary 197 It will be noted that in each case the employee's absentee record is weighed in terms of interference with pro duction and efficiency, regardless of whether or not the absences are due to genuine illness. The distinguishing fac tor is whether the habitual absences are likely to continue. Another factor that enters into the question of physi cal fitness relates to the right of the employee to placement in another job even if he is not physically fit to remain in his former job. In this connection, the Lonergan Manufactur ing Company case is worthy of note. The employee concerned returned to work after an operation, and, after medical exami nation by the Company physician, was pronounced physically qualified except that she ". . . should not be on her feet too much. Restricted work." Since the contract clause, applicable to the case, permitted return “where an employee is capable of efficiently doing a particular job and maintaining the standard of performance in respect to quality and quantity of produc tion after a ten (1 0) day trial period," the arbitrator con cluded that she should have been permitted a trial on a then- available part sit-down, part stand-up job. For, as he stated, "the Company's doctor approved her return to restricted work L.p (continued) action* The arbitrator apparently believed that here, too, in view of the employee's attendance record and disregard of the warnings, that there was no reah likelihood of improve ment • 198 • • • tike restriction], , , did not in any way indicate that only a full-time sit-down job was thereby approved nor did it indicate how much being on her feet was too much,** In answer to the Company’s argument that it was reluctant to reinstate her at all on the basis that her physical condition might be aggravated, thus increasing the Company’s compensa tion risk, the arbitrator pointed out: In making a new hire an employer obviously has a right to decline employment to those who will increase his compensation risk. But I know of no valid principle to sustain the claim that a Company can disregard an employee’s seniority rights and refuse to return him to work on the grounds that a physical condition might be aggravated thereby increasing its compensation risk, In some cases involving the issue of an employee’s fitness to return to work after prolonged absence due to illness, the arbitrator will consider the question one requir ing the best judgment of competent medical authority, and thus outside the scope of mere judgment by reasonable principles of equity. This was illustrated in a recent case, where the arbitrator ruled that: • • • There is recognition on both sides that a serious medical question is involved and the arbi trator, accordingly, has come to the conclusion that the final judgment on the advisability of the resumption of employment by the claimant , , , is one that should properly be made by a medical iii Lonerean Manufacturing,Company, 2 AULA Par. 67,8* 4- 0. (D. E. Whiting, July 3V 19^7)•Ihe arbitrator ordered the employee reinstated on an available job for a trial period. 199 4 - Mf expert• A final word to this section might be added about the question of the rights of an employee to reinstatement after prolonged illness. In general, if there is no special con tract clause covering the situation, an employee retains his status and seniority unless he either resigns or has been officially terminated by the company* So that in the case of prolonged illness he will be considered as having been on a leave of absence and thus eligible to retain his job, even if it becomes necessary to remove a replacement to reinstate him. Oxford Pants Company. Inc., 2 ALAA Par. 6 9 ,3 1 5 (M. J. Kaplan, September 29, 19^7)• .The employee who, previ ous to a prolonged illness, had established a good record with the Company, was pronounced ready for work by his own doctor. But the Company believed that his reinstatement would be conducive to poor relations with the other employees, since he was evidently under “great psychological pressures" and “appeared uncertain and confused.*1 The arbitrator concluded that he was not medically qualified to judge the employee's condition accurately. In contrast to this decision there is the rather unusual, but interesting, opinion rendered in another case: Wilkes-Barre Iron Manufacturing Company. 2 ALAA Par. 6 7 ,8 9 2 (Herbert W. Rogers, December 30, 19*+7) • ^ Don Lee Broadcasting System. 1 LA 571 (W. Strong, January 19, 19^6)• In this case, it was the employer's custom to terminate employees whose absence because of illness exceed ed two and a half weeks. There was no contract provision relat ing to sick leave. The employee had been absent from work for ten weeks because of illness, but had never actually been dis charged, nor had he resigned. On this basis the arbitrator ruled that the employee could not be refused re-employment, even though he had since been replaced, and he must be regarded as having been on a leave of absence and rehired as soon as available for work. 200 6, Corrective Discipline as Related to Excessive Absenteeism— Introduction As has been discussed before under the general heading 1* 6 of Discharge and Discipline, the reasonable application of corrective discipline is one of the main considerations which enters into the thinking of arbitrators when evaluating the justice of a penalty imposed. This is especially true where the issue is excessive absenteeism, since the term is so broad. Thus, some of the factors taken into account are whether warning notices have been issued to employees; the number of such warning notices; whether these were proper and deserved; whether these were enforced alike for all employees, and enforced positively at all times; whether after warnings the employee*s record improved, remained the same, or deteriorated; and whether the penalties imposed prior to the latest one were graduated in degree. Also of importance are such matters as long service with the company, or, on the other hand, newness to the job, since unfamiliarity with the rules serves as some excuse in some cases. 1*6 Supra, p. 155 et sag. 201 7* Cases Illustrating Arbitrators! Reliance on the Principle of Corrective Discipline Corrective discipline has been well developed and con sistently applied in cases arising under the General Motors- United Auto Workers (CIO) Impartial Umpire system. This principle has been well stated in several of the opinions of the Umpire, of which the following is a good examples As long as a real possibility of improving an employee*s conduct through increasingly severe penalties still exists, discharge is improper. But when an employee by his conduct and statements makes it evident that he is indifferent to further penal ties, the reason for the application of the principle disappears and Management is left with no recourse, but that of discharge, Arbitrators in many different industries have agreed with this principle, especially if it is indicated by the contract in the case before them. When, after corrective discipline has been applied in the form of warnings or other light disciplinary action, there is evidence of improvement, arbitrators will tend to give the benefit of the doubt to the employee. Thus, in the Pacific Mills case, the arbitrator stated: . . . It is obvious that only absences subsequent to the written warning referred to should have been considered for this purpose because the plain purpose ^ General Motors Corporation. D-**0 (Ralph T. Seward Umpire, June 1/7 l£^o), p. 10 202 of the contract provision was to give the employee an opportunity to correct the absenteeism before a penalty is imposed.™ In this case a twenty-year employment record with the Company and genuine illness as a reason for the spotty absenteeism over the two years preceding the warning operated to the advantage of the employee. On the other hand, when warning notices are apparently ignored by the employee with a record of excessive absentee ism, the arbitrator will almost certainly support the dis ciplinary penalty imposed by management. In a case previously cited where the employee was absent twenty-eight times over an eight month period, the arbitrator upheld her discharge, not only because of this unsatisfactory attendance record, but mainly because she had completely disregarded express and i implied warnings that further absences would not be tolerated* In some cases, verbal reprimands established on the record will be considered by arbitrators to constitute Pacific MillsT 3 LA. 1^2 (W. P. McCoy, May 9, 19b6). The contract clause referred to appears on page 182. LlQ ^ y Buffalo Weaving and Belting Company. 2 LA 59 (F. H. Brown, December 11, 19*+5)• Also, supra, p. loo. Other instances where arbitrators have upheld the disciplinary action of the employer, when the employees involved had received prior warnings without effect, so that little could evidently be expected from further corrective discipline were; Reynolds Metal Company. ? LA 752 (P. A. Carmichael, April 22. 19^7), supra, p p . 182. 190. Timken-Detroit Axle Company. 6 LA 73o TjTe. Kallenbach, February 25, 19^7). 203 sufficient and reasonable warning if the employee*s record of absences is excessively high. As stated by one arbitrators • . • the aggrieved acknowledged that he had been verbally warned as to his irregular attendance on an earlier occasion. The practice of the company is not definitely established with respect to written warning notices. . . . In the light of such testi mony, the substantive fact of a warning is established. The written notice, in the light of the absence of a specific understanding to the contrary, could have no additional force.'?0 Laxity of plant policy in regard to warnings, is, how ever, considered by arbitrators to be a failure of responsi bility on the part of management, and will usually serve as a mitigating factor in favor of the employee, even where there may be a justification for some discipline. This was well expressed in a case (unusual because the employer was a union, the International Association of Machin ists) as follows* • • The past practices of any employer in dealing with such matters as absenteeism and tardiness among its employees may constitute standards of future behavior by the employer just as surely as if those standards were embodied in a collective bargaining agreement. . . . If the employer feels that it has been too lax in the past in its tolerance of the con duct of its employees, it has a perfect right to seek to establish more rigid standards of conduct for the future• It may not, however enunciate such a new policy without warning in the manner complained of in this case. This is the first instance in the history of the ^ Campbell Soup Company. 2 LA 29 (J. D. Lohman, Febru ary 23, 19h-o) • Also supra. footnotes 2^*, 29* pp. 187; 189. 20b collective bargaining relationship between these two parties that any employee has been discharged for cause. It is all the more important, there fore, that the principle of proper notice of unsatisfactory conduct prior to discharge be established-j.as a guiding rule for the parties in the future In another case, an arbitrator held that it is manage ment* s responsibility to enforce its warnings, since failure to do so resulted in the employee being ‘ 'lulled into a false sense of security." Thus, the blame, at least partially, rests with the employer. To overlook this would, the arbi trator believes, be permitting "... the company to use its own indulgence as a trap, and this would be highly inequit- 52 able." 51 International Association of Machinists. 7 LA 233 (B.. Aaron, April 22, 19^7)• However, in another case— Michigan Steel Casting Company. 6 LA 678 (H. H. Platt, March 6, 19*+7) — where the plant practice was at variance with the express terms of the contract, the arbitrator ruled that the contract provisions control, rather than the past practice. This was stated as follows: "It is not the function of this arbitrator to say what custom and practice should be established by the parties in the settlement of grievances but only to point out that when a dispute arises, the grievance procedure outlined in the collective bargaining agreement must be followed and, where a past practice is found to be inconsistent with or in contravention to the express terms of the agreement, it is the arbitrator's duty to give full force and effect to the express terms of the contract rather than to the alleged past practice." (p. 679). The excerpt is from a case per taining to discharge for excessive absenteeism. ^ Michigan Steel Casting Company. 6 LA 68l. The employee involved admittedly had a poor attendance record. Nevertheless, according to the arbitrator's findings, ". • • [the Company] did not see fit to carry out its threats and to dismiss • • . v[the employee}' the very next time he was absent without reporting his absence." 205 In addition to maintaining a firm and consistent policy with regard to warnings, the employer has the further respon sibility of ensuring that any change in plant rules will not adversely affect the status of present employees. Otherwise, management takes the chance of having its penalties lessened or withdrawn by action of the arbitrator who reviews them. For example, when a rule on absenteeism is changed so as to reduce the number of warnings which must be given by the company prior to discharging the offending employee, those employees who already have warnings on their records will probably have to be permitted the full number of warnings required under the original rule before being discharged. The basis for this principle was illustrated in the Indiana Railroad caseT where the arbitrator stated: • • • The ordinary rule of interpretation of statutes and regulations is that they will not be given a retrospective effect unless the intent to do so clearly appears. In the opinion of the arbitrator, the same rule is applicable to the provisions of a collective bargaining, agreement. or an operating rule such as the rule here involved. There is nothing in the language of the amendment to indicate an intention that the rule as amended should apply retroactively so as to enable the com pany to consider missouts which occurred prior to that date as among the missouts which would form the basis of discharge under the amended rule. Nor is there any evidence in the record to show that the company advised the employees in any other way that it would, consider past missouts under the amended rule. If the company had intended to apply the rule retroactively, it would have been simple to have made a statement to that effect or otherwise communicated that circumstance 53 to the employees.** 8. Cases Illustrating Right and Wrong Usage of the Charge of "Excessive Absenteeism." Employers may allege excessive absenteeism as a con venient and covering excuse for discharging or disciplining a worker; but if they are unable to prove excessive absenteeism, and, instead, attempt to introduce or substitute other grounds to support their action, they will very likely be checked by the arbitrator who reviews the case. In one case where the employer could not prove his charge of excessive absenteeism, even though there were other valid grounds for discharge, the arbitrator ordered the employee reinstated: . . . since the basis for his discharge is stated by the Company to be 'excessive absenteeism* it cannot be sustained. An employee is entitled to know the reason for his discharge and that reason must be shown to be true before other grounds can be used to ^ Indiana Railroad, b LA 77 (A. Elson, July 15, 19^6). In this ease the employee was guilty of two absences from work for which he received reprimands during the period when the rule permitted discharge for the fourth offense only. Between the time of the second and the third violation, how ever, publication of an amendment of the rule permitted dis charge after three offenses. The Company discharged the employee under the amended rule. But the arbitrator refused to apply the amended rule retroactively to the first two absences, because the amendment to the rule gave the employee insufficient warning of his being subject to discharge after the third offense. 20 7 sustain th© propriety of such discharge. The fact that other cause for a discharge did exist means that such discharge was not unjust but merely improper and obviates any valid claim for pay for time lost. Also this employee should remain aware of his poor record and be alert to reestablish a good record of conduct and workmanship if he is desirous of retaining his job.?** On the other hand, where excessive absenteeism might indisputably constitute valid grounds for discipline, and the Company, through mistake or otherwise, chooses to press charges on the basis of other reasons, the Company must be able to prove its case on the grounds alleged. This is, in a sense, the reverse side of the principle above, and is well illustrated by the Bethlehem Steel Company case, where the arbitrator states: . . . Thus, while the company has alleged lack of ability and physical fitness . . . as the reasons for‘ [the employee's! layoff out of the order of seniority, its evidence, being confined to absentee ism and lack of initiative fails to support its con tention that [the employee} had less ability or physical fitness than workers of less length of ser vice who were retained. The umpire believes that even if the determination of ability and fitness International Shoe Company. 7 LA 9*+3 (D.E. Miiting, May 5, 19*+7)« The arbitrator did not consider that five absences in a period of nine months was excessive. The fact that the employee consistently failed to notify the Company of his absence and thus violated a well-known plant rule would constitute sufficient cause for discharge. However, said the arbitrator, this is immaterial because it has no relation to the charge of excessive absenteeism. (Note: in previously discussed cases both excessive absenteeism and lack of warning have been substantiated as reasons for dis charge and discipline.) 208 are primarily for management, it is incumbent upon management to do more than allege that an employee who was laid off was deficient in these qualities. There ought to be evidence to support such a charge."55 However, as long as the employee has an opportunity to learn about and defend himself against the charge of exces sive absenteeism, such defense may be introduced even as late as the final step in the grievance procedure, as demonstrated 56 in the opinion of an arbitrator in a recent case, A final word might be added concerning those cases where the union alleges that the elaim of excessive absentee ism is being raised to conceal the employer's desire to crc Bethlehem Steel Gomnanv. 5 LA 582 (J, Brandschain, November 27j 19^6). See also: Ohmer Corporation. 8 LA 9**3 (Charles G. Hampton. August 23, 19*+7) where discharge was based on a combination of offenses, two of which could not be proven, resulting in the arbitrator ordering reinstatement without back pay. Also: International Harvester Company. 6 LA 73 (A. C. Lappin, December 11, 19^6), where Company's charge was “based exclusively upon . . . failure to report, yet the company's witnesses did testify concerning absenteeism, previous notices, etc," ^ Tiraken-Detroit Axle Company. 6 LA 736 (J, E. Kallen- bach, February 2!?. 19^+7) • The original grounds for discharge as shown on the discharge slip was "lack of interest in work." The Union argued that "... the propriety of [the employee's! discharge must depend upon the sufficiency of the charges stated in the original discharge notice rather than upon the charge of excessive lateness and absenteeism, which was added later." (p. 7^3) However, the arbitrator stated that the employee . . was in a position at the final stage of the grievance procedure to know all the grounds upon which his dis missal was being based and to make answer to alh the charges presented. His final employment office records show the charges against him as stated in final form, which include direct reference to his absenteeism and lateness record." (p, 7^) • 209 discriminate against union members, or his annoyance with the absence of an employee on legitimate union activities. Unions, too, sometimes resort to similar subterfuge by attempting to establish that a legitimate discharge or disciplinary action for absenteeism was in reality anti-union discrimination. Although the employer must be especially cautious in discharging a well-known union official for absenteeism (since a violation of the NLRA may be charged as well as breach of contract), if the facts support the company*s claim, the disciplinary penalty will be sustained by an arbi trator. As stated in one case: Where . . . ample cause for discharge exists, a strong case must be made out before an arbi trator would be justified in attributing the dis charge to_an alleged motive to discourage union activity. Le Roi Manufacturing Company. 8 LA 350 (C. M. Upde- graff, July 2 8, 194-7). When the Company discharged an employee who had taken time off on legitimate union business, despite the Company*s refusal to grant it, the arbitrator ruled that the contract required that union representatives shall be given a reasonable amount of time off to represent the Union "at national, state, or county conventions or con ferences," and the few days a week during the short legisla tive session involved could not be considered excessive absen teeism in the light of the contract provision permitting this type of absence. (JO Pan-American Petroleum Corporation, 2 LA 5^ (W. P. McCoy, April 16, 19^6). The arbitrator stated that he could not consider the "griping” of the company’s personnel supervisor over the employee's union activities "sufficiently strong" evidence of discrimination, •vdiereas "the company, quite obviously, had sufficient reason to doubt the bona fides of . . . ihisl claims of illness . . . Of course it is entirely possible that . . . [his] sudden illness, coming opportunely 210 The NLRB has adopted the same position as arbitrators with respect to alleged discriminatory discharge of union members where the claims lack merit, and generally refuses to give union members and union officials special privileges.^ V. SECTION C. UNAUTHORIZED, UNREPORTED AND UNEXCUSED ABSENCE 1. General Discussion Unlike the question of excessive absenteeism considered above, the arbitrator called upon to decide cases of unauthor ized, unreported, or unexcused absences is not so much con cerned with the number of absences, as with the reasons for them and the procedures for giving proper notice and receiving permission. In the first place, there is a distinction between excused, reported and authorized absences, and their negative counterparts. Secondly, there is the element of notification to the right person or department. Thirdly, the time when notification is given is an important consideration. And, ^ (Continued) at ;just the time he had planned the trip [out of the country], was quite genuine and its occurrence at that particular time merely a coincidence. * ' But the arbitrator concluded that the evidence showed no good reason for not reporting and not returning to work. Greenpoint Basin and Construction Company. IQ LRRM 183‘ ; Firestopp li££ & Rubber fibfflpafly, 16 LRRM 266; A tins Imperial Diesel Engine Gompanv. 17 LRRM l6l. 211 finally, there is the pertinent contract provision or plant rule to he interpreted or applied* 2* Definitions For purposes of this investigation, an excused absence may be considered as being one -where the employee has notified the company of his inability to report for work or desire to stay out, has explained the reasons therefor, which reasons have been accepted by the company as proper and legitimate. An authorized absence is one where the employee asks in advance for permission to be absent and is granted authority to take the time off* A reported absence, although not necessarily an excused or authorized absence, is one where the employee has properly notified the Company of his intention to remain away from work. Although in daily usage, the terms “unexcused1 1 and “unauthorized” are often used interchangeably, the main dis tinction is in the timing of the notification. If management refuses or has no opportunity to grant permission for an absence already in progress, the absence is considered to be “unexcused. 1 1 However, if the request for absence has been denied in advance of the employee1s taking the time off, then the absence is “unauthorized.” Most employers are considerate in excusing absences 212 for legitimate reasons, if the employee takes the trouble to inform the company of his inability to report for work and secures permission to remain away, especially if he has a fairly good record of attendance. On the other hand, employ ers will not cheerfully tolerate unreported absences or absences where permission has not been granted, for the simple reason that such absences are entirely too disrupting to normal operations, since there is no way of determining why the employee is absent, where he is, and when he plans to return if no notification is given, Unauthorized absences are even more serious. An absence in disregard of management's refusal to grant permission is considered to be close to insubordination. Arbitrators almost invariably uphold the principle that: The granting or denial of leave of absence is a prerogative of management, and, so long as the action taken is not unreasonable or discriminatory as to the individual involved, the judgment of the company should not be questioned,00 Here again, this is understandable in view of the fact that unauthorized absences often disregard, and, perhaps, may even jeopardize the efficient operation of the plant. The absence of a key man may cause an entire assembly line to be shut down temporarily or involve widespread shifting and ^ Union Oil Company. 3 LA 110 (V. E. Wardlaw, April 23, 19^6). 213 transfer of employees to fill the gap left open by the absentee• At the same time, management has the responsibility to be fair and reasonable in connection with the granting or denial of permission to be absent. Arbitrators will no more condone arbitrary refusal to permit time off where the employee has good cause to be absent and legitimately needs the leave of absence, than they will support employees who arbitrarily disregard management’s express denial. The issue of proper report of absence very frequently is submitted to arbitrators. An absence may be considered unrenorted. because it was not received by the right person or office, because it was not made according to the prescribed procedure, or within, reasonable time limits. Negligence may occur on both sides. Sometimes an employee fails to insure the receipt of his message by sending it with an irresponsible or careless person. On the other hand, there are numerous cases which disclose employer negligence in failing to record the facts of a message sent. Thus it sometimes happens that an employee claims that he did, in all good faith, report his absence; but for reasons beyond his control and knowledge, there is no evidence of receipt of such a report. In cases of this kind the arbitrator will probably refer to the employee's past record, and if his reputation for honesty is satisfactory and his absences limited, the employee will be 21** given the benefit of the doubt. Illness, injury, distance from the facilities necessary to inform the company of absence, and other factors beyond the control of the employee, of course, will all serve in the employee's defense, where no report has been made. Unauthorized and unexcused absences are more positively considered in contract provisions and plant rules than the matter of excessive absenteeism, although, it should be added, the clauses to one almost invariably affect the other. 3« Illustrations of Contract Clauses Dealing with Reporting and Securing Permission for Absence Showing absence without reportings An employee who is absent from work over three ( 3) days for any reason and who does not report such within three (3) days, providing it is possible shall lose previous seniority, and may be discharged at the discretion of the Management. b1 Showing absence without permission: When any Mine worker absents himself from his work for a period of two days without consent of the Operator, other than because of proven sickness, he may be discharged. ^ Showing distinction between necessary and unnecessary 6l Continental Can Company, Inc. and United Steelworkers of America— CIO. 6 2 Appalachian Bituminous Coal Operators and United Mine Workers— Independent. 63 absence: 215 Necessary absence will be construed to include all absence due to the following conditions: (1) Illness or illness in family; (2) accident or accident in family; ( 3) death of a member of family; (*+) funeral or weddings of members of immediate family; (5) on business in connection with E.B.A., Union or Company.64' Contract clause showing discretion of management in the event of personal emergencies: Absences for other than personal illness shall be subject to salary deduction. Reasonable leave will be granted with salary at the discretion of the administration for personal emergencies such as death or seripus illness in the immediate family of the absentee. ^ Showing penalty for failure to report: Regular attendance is expected of every employee. Absence reports may be made by telephone at any time, day or night, in person, or U. S. mail. Seven consecutive days* absence without report constitutes cause for removal from rolls, with any subsequent re-employment being without credit for previous ser vice. Failure to report to the Company within seven consecutive days after the expiration of a leave of absence, or other periods of absence of specified duration constitutes cause for removal from rolls, with any subsequent re-employment being without distinction is specifically for the purpose of determining whether substitutes hired to take the place of the absent employee shall be paid time and a half (as in cases of “necessary absence* 1 and straight time in cases of “unneces sary absence.” “Unnecessary absences” are defined by irapli- catioxas all those not included in the clause. 6b Abdawagan Paper Products Company and Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL. ^ Jewish Social Service Association and United Office and Professional Workers— CIO. 216 6 6 credit for previous service. Showing penalty of layoff equal to unexcused absences An employee absent without leave shall be docked for the absence, and shall be laid off without pay for another period equal to the unexcused absence. Upon being notified that he is deemed guilty of the third unexcused absence within a six months period, the employee will, without delay, report to the employment office, accompanied by his grievance man or other Union official if he chooses, and indi cate where, in writing, whether hearing is desired. The employee will then leave the premises in an orderly fashion and without delay. Showing distinction in reporting when leave of absence is planned, and when emergency leave is required* Employees wishing to secure leave of absence shall request the same from the Overseer of his or her department, in writing, and the Overseer shall immediately furnish the Shop Steward of that department a copy of his decision. The request shall state for what purpose and to what date the leave is desired. . . • Emergency Absence. Any employee absent from work by reason of illness or other reasonable cause shall notify the Company as promptly as possible, such notification to constitute application for leave of absence. If no such notice has been received by the Company within three (3) working days, then such employee(s) shall be deemed to have severed their employment Showing leave of absence, including the unusual factor 66 B. F. Goodrich Company and United Rubber Workers— CIO. Cf. footnote 19, p. 182, arbitrator’s interpretation of seven consecutive day clause. 6 7 George A. Hormel and United Packinghouse Workers— CIO. CIO. 68 Pacific Mills and Textile Workers Union of America— 217 of being “called out of towi": Unless specific arrangements are made in -writing with supervision for a definite leave of absence beyond seven days in case of reporting off because of “sickness in family,*' "called out of town," “death in family," or other miscellaneous reasons, removal from the rolls of the Company will take place on the eighth day of absence."5? Showing permissible absence on a limited basis: When the requirements of the plant will permit, an employee shall, on his request and for reason able cause, be granted leave of absence without pay for a limited time with the privilege of renewal. An employee absent on leave who, without the consent of the Company, engages in other employment or who fails to report to work on or before the expiration of his leave will be considered as having quit. ' 0 Showing provisos attached to protect employer: A leave of absence will be granted in writing by the Company to a working employee for a period of one week, providing the employee makes proper pro vision in advance with his Superintendent, and pro viding his leave of absence will not necessitate the payment of overtime to fill the vacancy. In case of sickness or extreme emergency, employees will make proper provision with the Superinten dent. . . The most common period of permissible absence appears to be about thirty days (leave of absence) if the reasons are Aq 7 B. F. Goodrich Company and United Rubber Workers— CIO. ^ Aluminum Company of America and Aluminum Workers of America— CIO. This, and the following illustration, intro duce production requirements as a qualifying factor. 71 C. M. Christiansen and International. Woodworkers Union— CIO. 218 satisfactory to the company and. plant conditions allow. Some agreements extend the privilege to as much as ninety days or one year, but these are not usual. Frequently notification of leaves of absence, especially lengthy ones, must be given to the union even if company-approved. The penalties result ing from failure to secure permission from the company have been indicated in the examples above. Innumerable variations of such clauses, as well as clauses applying to specific reasons for leave, such as for union business, jury duty, military duty, school attendance, maternity, etc. all appear in various contracts which arbitra tors are called upon to interpret. There is no necessity to 72 go into these exhaustively here, however. Those which do appear in this study are included mainly to indicate how clearly defined the limitations are which_bind arbitrators who decide the cases hinging upon them. Most plant rules concerning report and permission for absence are just as specific, indicating the importance which 72 For other examples, sees Collective Bargaining Con tracts (Washington, D. C.: Bureau of National,Affairs, Inc., 195157 pp. 355-358* Collective Bargaining Negotiations and Contracts (Washington, D. C.s Bureau of National Affairs, Inc., 1955) , Section 50. Union Agreement Provisions (Bulletin No. 6 0 6; Washington, D. C.s Industrial Relations,Division, Bureau of Labor Statistics, U. S. Department of Labor, 1952), pp. 110- 1 1 6. 219 is placed upon these requirements. Since there is consider able duplication, only a few of these will be cited.73 Note how specific as to place and immediacy most of these are. If you are to be absent through illness or other sufficient cause, notify your immediate supervisor promptly. If unable to report for work, you should arrange to send word immediately to your foreman, giving the cause and probable length of your absence. In order to remain in good standing, explain your absence to your foreman or to a representative of the Personnel Department at least once a week if you are absent a protracted period. If you are going to be absent for three days or less, call the First Aid Room so that your foreman will he notified. If you can’t call, send a penny post card or letter. If you are going to be absent for more than three days because of sickness or some unusual circumstances, request a leave of absence. If you are absent for more than seven consecutive days because of illness, you will not be permitted to return to work without a Doctor’s statement that you are able to do so. Employees desiring to be absent should.notify their foreman at least 2*f hours in advance. When detained from work unexpectedly, notice should be given immediately by telephoning the . . . employ ment office.7* 5. Outline of Factors Considered by Arbitrators Analysis of the cases indicates that those which fall 73 All the rules cited appear ins Employee Relations and Arbitration (New Yorks Prentice-Hall, Inc., February 9* 1958), Vol. IX, No. 16, p. 3. nh * Browne & Sharpe Manufacturing Company and Inter national Association of Machinists— Independent. 220 within the category of unauthorized, unreported and unexcused absence, are subject to three main considerations when pre-r- sented in arbitration, namely: notice, permission^ and r>la,nt practice. These, in turn, divide themselves somewhat as follows: (A) Notice and permission (1) Gases in which no notice is given; conse quently no permission is granted (2) Gases in which notice is given, but permis sion is denied (3) Cases in which notice is given, but fails to be received (B) Effect of past practice and consideration of pur pose of rule (1) Cases where plant policy is loose or lax (2) Cases where penalties are not applied uni formly (3) Cases where production needs of company are a factor (b) Cases where employer negligence is a factor 5* Cases Illustrating Failure to Give Notice or to Report Absence As shown in the previous cases analyzed, where both excessive absenteeism and the tendency to fail to report or 221 await permission for absence are evident in the record of the same employee, it is generally indicative of a lack of respon sibility. However, as will be shown in the cases considered in this section, this is not, by any means, an invariable com bination. Hence, where absenteeism is not especially exces sive, arbitrators are careful to look into possible mitigating circumstances that may explain the employee's failure to report. Thus, a long record of good service with the company will cer tainly tend to lessen the penalty, even though the absence which gave rise to the discipline is admittedly deserving of discipline. This is certainly true where length of seniority is a factor and important accumulated benefits to which the 75 employee is entitled may be lost. Illness, coupled with conditions which make it extremely difficult to give immediate notice, if verified, will most Southern Pacific Company. 2 LA 3*+6 (E. B. Chappell, May 2 3, 19‘ *+5T* The employee in this case had twenty-three, years of prior service with the Company and no other serious derelictions of duty. Since length of seniority is an impor tant consideration in the railroad industry, members of the National Railroad Board, Fourth Division, which heard the case, concluded: "We believe that [the employee's] conduct merited discipline. However the] has now been out of the employ of the carrier more than I1 * months, and because of his many years of service* the division feels that he should now be restored to service with seniority rights unimpaired but without any compensation for time lost, resulting from disciplinary action of the carrier." (p. 3 6 3). 222 76 generally serve to excuse the employee. The employer's past practice in accepting illness as a reasonable excuse for failure to report an absence will also play a large part in the arbitrator's review of the penalty. ' 7 '7 Needless to add, if the illness cannot be substantiated by the employee, the 78 arbitrator will uphold reasonable discipline. In general, honest mistake is given considerable weight in exonerating the employee from blame if a reasonable effort 79 to comply with the rules has been made. 76 Celanese Corporation of America. 9 LA 1^3 (W. P. McCoy, December 1 6, 19^7)• In this case the employee had an attack of chronic appendicitis, and despite a series of unsuccessful attempts to send a message with a relative, he was not able to notify the Company until the third day of his illness. It was a small town and access to telephone service was very limited over the weekend when the emergency occurred. The arbitrator concluded that the employee had made a reasonable effort "and that he actually did notify the Company at the 'earliest prac tical time* within the meaning of‘the contract clause. . . . 'Practical' is not synonymous with 'possible.'" 77 Copeland Refrigeration CorporationT 8 LA 23 (P. N. Lehoezky, November 9, 19^77^The employee had received a warning notice for being absent two days without an excuse. Subsequent to receipt of the warning notice, she brought a physician* s certificate indicating that her absence was due to genuine illness. The arbitrator ruled that the warning notice must be withdrawn because the employee proved that her absence was "reasonable" and the Company had been accepting such "rea sonable" excuses in the past. 7^ Webb Coal Mining Company. 1 ALAA Par. 67, 2*+l (W. H. Haskins, October 27, 19*+5)• Conflicting statements concerning alleged illness were considered insubstantial evi dence by the arbitrator. 79 Erie Resistor Corporation. 5 LA l6l (A. C. Lappin, September 18, 19^+6)The employee was absent from work four days, and reported her reason as illness on two occasions, the 223 6. Cases Illustrating Absences in Disregard of Refusal of Permission An employee may consider his reasons for requesting a leave of absence so important or urgent that he refuses to accept management's denial of permission and takes the leave anyhow. Such absences are generally looked upon by arbi trators as clear cases of insubordination, except where the employer has, in the past, been lenient with single instances of the offense, or where supervision is guilty of contributory negligence, possibly resulting in mistaken understanding on the part of the employee. Also, there may be unusual circum stances and conditions that deserve consideration. In such instances, arbitrators tend to modify the penalty downward, despite their whole-hearted agreement with the principle that disregard of management's refusal of permission for an absence is a serious offense. This qualifying approach will be shown concretely in the following cases. VJhereas, under peacetime conditions an employee's taking of unauthorized leave to visit with a soldier friend probably (Continued) second and third days of her illness. The arbitrator held that it was, therefore, incorrect to penalize her when she did not realize the necessity of reporting that still another day was needed for recovery. The arbitrator considered the Company too strict in its application of the rule on leave-of-absence. See also: Volco Brass & Conner Comnanv. 7 LA *+71 (I* R* Fein- berg, June 3, 19*+7)* 22k- will not be condoned, the same situation in wartime may be 8l looked upon as pardonable. This is similarly shorn in two cases where employees took their vacations in disregard of management1s refusal to grant permission therefor. In one case the circumstances sur rounding the processing of the employee*s grievance over not flA Walt Disney Productions. 2 IA 627 (L. A. Peifer, April 2, 194- 0) • The employee had requested a leave of absence to visit her fiance “. . . whom she had not seen for more than two years and who was getting out of military service. . . .** The leave was denied for the period requested on account of the heavy production schedule of her department. Adequate machinery existed for appeal of the supervisor*s denial of the leave, but the employee neglected to utilize it, and "deliber ately and intentionally remained away from her Job for a week and one day without permission of or notification to the com pany.” The arbitrator upheld her discharge, indicating his adherence to the principle that it is management *s right to make those vital decisions pertaining to the scheduling of production, in the following statements ”• • • The seriousness of this offense is as great as or greater than any other which lies within the power of the employee to commit.” (p. 6 2 8). 8l American Steel Package Company. I1 * LRR Man. (C. G. Hampton, May 9, 19*")* The employee requested a six-day leave of absence in order to visit her ”boy friend” on leave from duty in the armed forces. Permission was refused, and she, thereupon, asked her foreman whether she would be dis charged if she were absent less than three days. The foreman apparently replied, according to the findings, that he would not fire her unless she were "absent three full days.” She stayed away two and a half days and then returned. Shortly thereafter, she announced that she wished to take an additional day and a half off to see the same friend leave by train for another city. Despite additional warning that she would not be excused, she took this second period of leave. Thereupon, she was dismissed. Even in the light of these unauthorized absences, however, the arbitrator ruled that discharge was too drastic a penalty ”in view of 'understandable* reason for the employee's absence. ...” Back pay was withheld however, since the employee had violated the spirit of the rule to curb absenteeism in the plant. 225 being permitted to take his vacation -when requested, indi cated company negligence; and the arbitrator apparently believed the employee's position was, therefore, still 82 unheard at the time of his discharge. In the second case, however, under somewhat similar circumstances, where the employee failed to utilize the grievance procedure at all, the arbitrator was n6t so tolerant, and stated emphatically: If the department superintendent acted arbi trarily in denying employee . . . the right to take time off for vacation purposes . . . same would be the basis of a grievance which could have, and should have been disposed of in the usual, orderly, and proper manner set forth in the grievance procedure contained within the contract between the parties. Employee . . . did not take advantage of the machinery available to him for filing such a grievance and having same processed in an Kirsch Company. 5 IA 624- (D. E. Whiting, November 13, 19^6). The employee left his grievance at the company personnel office, indicating that he had understood the fore man to have given him permission for his vacation at the requested time. Mhen at the time he had arranged to leave, no word was forthcoming, he left on his vacation. He was discharged under the contract clause which provided for loss of seniority and employment for absence of three workdays without satisfactory explanation. The arbitrator stated that: "There is no question but that Myers acted arbitrarily in many ways. . . . Thus he violated the contract between the parties and did not conform to the requirements of the vaca tion notice or procedure. Certainly he is subject to dis cipline. . . . Under the circumstances, [however] I feel that I must hold that the pendency of the grievance required a maintenance of the status quo and acted to suspend the automatic-termina- tion clause. Surely the company could and should have answered the grievance sooner and put the union or [ the employee! or both on notice that absence • • • would result in termination.“ (p. 627). 226 orderly manner by his duly constituted bargaining representatives, the union. Instead, he took it upon‘ himself to set his own vacation date and,* when he was denied the right to take the time he had requested, disregarded the admonition of his super intendent, disregarded the function of the* union and the grievance procedure outlined In ^contract between his union and the company and took the vacation not withstanding. He did not, however, hesitate to seek the union* s assistance when the company invoked a ' penalty against him for his actions. The least that can be said about employee .q* . was that he was insubordinate and arbitrary. l Taking off additional time on either side of a granted leave or regular holiday is a great temptation, and employers are well aware of this. Consequently, they sometimes antici pate the inevitable and attempt to reduce the probable rise in absenteeism by warnings and appeals. Or, if production sched ules permit, special allowances are made for time off. If the employees deliberately disregard such warnings, appeals, or the considerate attitude of management, arbitrators will not support their ease. Three separate General Motors cases offer an interest ing contrast by reason of the variation in penalty imposed by the same umpire. In the first of these, two employees requested and received permission to be absent from work for several days for the express purpose of deer-hunting. In anticipation of Inland Steel Company. 1 LA. 363 (1. B. Courshon, January 2k, 19^6). For facts and further discussion of this case, infra, p. 2*fl. 227 the deer-hunting season, the Company had arranged a plan whereby employees could take time off with a minimum loss of operating efficiency. However, these two employees wanted even more time, than was to be allowed. When they filed their request for leave they asked whether they would be disciplined if they took off additional time, and were informed they would be. Despite this, they took off the extra time. The arbitrator, in upholding the disciplinary layoff, pointed out that: Management’s attempt to make a period available for employees to indulge in their favorite hunting sport is an act which should be encouraged rather than being taken advantage of by unthinking employees. By their acts prior to the beginning of the deer season [taking two extra days], [they] definitely indicated that they were weighing the discipline that would be meted out to them if they shouldf t take improper leave at the beginning of the season.^ Nevertheless, in another case involving the same type of violation, the arbitrator modified the discipline, since in this case supervision did give the impression that the penalty 85 would be lighter than termination. The third case involved failure to report for work the day after the Thanksgiving holiday, even though the two employees were specifically instructed to do so when they 8)+ r eral April 19, L, 3). f eral Motors Corporation. Decision C-31 * (G. A. Dash, General February 9> 19^3). General Motors Corporation. Decision C-1 * - (G. A. Dash, 228 telephoned in for permission to take the time off. Both received disciplinary layoffs. The arbitrator ruled that they were improperly disciplined, since single days of unexcused absences frequently were accepted in the plant without penalty, 86 and these employees had at least made the effort to call in. An interesting example of an employer's careful pre cautions against a high rate of absenteeism following a holiday 87 is afforded by the Brown and Sharne Manufacturing Co. case. 86 General Motors Corporation. Decision C-35 (G. A. Dash, April 2 0, 19^3)• It is to be noted that the arbitrator believed that to penalize these employees would create inequities since in past practice the employer had accepted such absences with out penalty. 87 , Brown & Sharpe Manufacturing Company. 7 LA 131 *, (James J. Healy, February 20, 19*+7) • The background of the case presents the following essential facts: “The [Company] throughout the war years and in the immediate postwar years has maintained an enviably low absentee record. At the present time it approximates 2.3 per cent. It is clear that the suc cessful record is a product of both a well-devised plan and the cooperation of the unions." "In 19^6 the company was aware that two holidays— Memorial Day and the Fourth of July— fell on Thursday. Produc tion requirements dictated work on the Fridays after each holiday, but it was inevitable that absenteeism would soar because of the attraction of a long weekend. Both union and company representatives agreed that on the Friday following May 30 absenteeism ..rose considerably to from 10 per cent to 15 per cent. Each person who was absent without leave was interviewed by the head foreman; .if the foreman felt the reason given was unjustified, the employee was given a slip saying that he had been absent without permission and that he had failed to notify the employment office and that repeti tion of the offense would warrant more severe action. Prior to the July b holiday, [the] personnel administrator of the company, met with the union committee in.an effort to secure full cooperation in curbing absences without leave on Friday, July 5. TMe committee agreed to cooperate with the result that, in a plant of 6,700 people, there were only three AWOL cases." One of these cases was that of the aggrieved employee. 229 This is worth considering in some detail at this point since it so well illustrates the. . importance attached to “permission*1 for absence as distinguished from mere “notification,** both from the employer*s as well as the arbitrator's standpoint. In stating its case, the Company asked, in effect, . . whether an employee can disregard and even defy a departmental foreman..when refused permission to be absent, particularly in the face of a warning from the departmental foreman, that pen- 88 alty would be the result of such absence." The Union advanced two major arguments; (1) That the employee notified his foreman at least twenty-four hours in advance of the prospective absence; whereas other employees who “. • . didn't show up . . . but merely telephoned in . . . or had someone else telephone in saying.they were detained from work unexpectedly, . . . were not penalized in any way, . . . [thus], the man who complied with the rule became a victim by virtue of his compliance"; (2) It is not customary (in the absence of anything specific in the rule and following the past practice) to advance a reason in detail for the absence. The arbitrator in a careful statement indicated the principles OQ Loc. cit. The aggrieved employee had been warned after Memorial Day for having been AMOL on the day following. He later asked permission, of his.^department, foreman to be absent for “work on the cottage" on July 5, but he was refused permission on the grounds that his reason for absence was inadequate. In spite of this refusal and an.accompanying warn ing, he did not report on July 5- 230 89 involved, as follows: Miether one examines the past application of the rule or the logic of its purpose . . . not only must there be notification but reason for absence and approval thereof. [Sincef other employees had been denied per mission . . . , to have yielded to tthis employee] would have created inequities among the employees. These other employees reported for work on Friday, July 5- The arbitrator appreciates that those employees who call in at the last moment seem to have an advantage, but this raises a question concerning the efficacy of the rule as now written, and the rule itself is not the subject of arbitration. It is very likely that on normal days greater flexibility was exercised because there was less 89 Loc. cit. The quotations are “in part* 1 and not necessarily consecutive, but care has been taken not to change the original meaning of the same in context. Other cases which contain the same general principles are: I. M. Pearlstine & Sons. 2 ALA.A Par. 67,853 (P. H. Guthrie, July 5, 19^-7T«The employee involved disregarded his super visor's warning that he would be discharged if he did not report on a certain day. The arbitrator, while ackmwledging the discipline as quite severe, considered it justified in the light of the employee’s statement that he preferred “to take a chance* 1 on the warning rather than to report for work. The arbitrator stated that he would not put himself “in the posi tion of encouraging an employee with full warning in advance to take 'his chances' in avoiding disciplinary action promised by the Company. “ Union Oil Company. ^ LA 108 (V. E. Wardlaw, April 23, 19^6) • Submarine Signal Company. b LA 56 (Hugh W. Babb, June 16, 19^6). Pan-American Petroleum Corporation. 2 LA 5^1 (&. P. McCoy, April 16, 19bZY7~^ This latter case provides an interesting comparison with GM Decision C-35 (sunra. footnote 86) for here inequities would have been caused by permitting the employee to take the time off without penalty. It can be considered a variant of the same principle. 231 danger of having a work-force sharply cut by absences. However, the company, both by conference and through the use of warning slips after May 30, gave ample notice that for the July 5 weekend only a few excus able absences would be recognized. The liberality in granting leaves was purposefully less on . . . [ that]< occasion. There is no tangible evidence that the reduced list £ of excusable absences]^ was unfairly applied among the employees by the foreman. The foreman, therefore, was neither unjust nor discriminatory in his treatment of [the employee*s]/ reason for absence. E pp. 136-373 * Scheduled overtime days, like Saturdays and Sundays, although generally welcomed by employees as a source of more income, are sometimes not an unmixed blessing. For seven days a week over a long period can become tiresome as well as tir ing. When the employee either mistakenly believes these days to be optional— because they are not a part of the regular work week— or chooses to forego the double-time or time and oner-half, pay in order to take a rest, he may find himself subject to discipline, for having stayed out without permis sion. There is no question that the employee who takes it upon himself to determine the scheduling of his work in this way is usurping a function belonging to management; and arbi trators will not generally.support such action, although the arbitrator’s opinion will no doubt be influenced by whether management has been considerate of the needs of the 232 90 employees^ and has made it very clear that failure to report for scheduled overtime work will be disciplined.^ Another rather unusual case serves to illustrate the right of management to refuse permission for an employee's rescheduling of his time to suit his own convenience. Mien time is permitted for voting on election day, "It [is] for the Company to schedule the voting, time," stated the arbitrator ^ Huron Milling Company, * + • LA (G. M. Updegraff, July 27} 19*+6). The employee failed to report for work when his foreman scheduled him to work on a Sunday as a seventh day of work. The arbitrator states: "There is no doubt in the mind of the arbitrator that the employee here concerned did commit an offense against the rules of the Company by remaining absent from work after having been refused permis sion to do so. . . . [However] . . . certain extenuating circumstances should be taken into consideration. [He] had but recently returned from service. He was holding down a somewhat unpleasant assignment upon which the turnover has been rather high. He had worked at his job seven days a week for several weeks, and he was requesting as time off a Sunday, the normal day of rest, and so expressing a desire to forego double-time for the privilege of having his freedom during that day. . . . Under the circumstances it would seem the foreman should have made a sincere effort to find a sub stitute for him on the day in question. The work he was doing did not require a high degree of learning or extended experi ence, and the substitution of another man for the job surely t would not have cost any more than the doubletime to which [ he] . . • would have been entitled for work on the day in dispute." The arbitrator, therefore, recommended reduction of the penalty to disciplinary suspension. General Tire and Rubber Company. 6 LA 918 (C. G. Hampton, February 1, 19.4-7) • This arbitrator, too, was , of the opinion that the employee should be disciplined for failure to report for Sunday work, according to the plant rule; but consideration should be given to the employee's misunder standing of his rights under the contract, whereby employee thought that working on Sunday was optional. Therefore, the arbitrator reduced the penalty from a one week layoff to a simple warning notice. 233 In this case. Thus: V \J . . . [the employee's] actions in seeking the pre ferred time and not reporting for work as scheduled in disregard of \theY foreman*s . . . request and need for his services, should sustain the discipli nary action taken here by the Company. It was for the Company to schedule the voting time. . . . [The employee*s]^ services on Election Day were essential. He was so advised. His actions must, to the Board's view, then be deemed the equivalent of refusing to report for work, if not actual insubordination.92 7* Cases illustrating the Question of the Responsibility of Employees to See that Hotice Is Received and Permission Granted The foregoing section considered cases which, in the main, dealt with deliberate disregard of management's refusal of requested time off. In this section the cases selected will serve to illustrate unexcused and unreported absences. Since a report of absence must be received if permis sion is to be granted, the giving of notice in itself does not necessarily constitute permission for being absent. In some instances, such absences are considered as much unexcused 92 Ingersoll-Rand Company. 7 Li 571 (M. M. Shipman, May 22, 191* 7) , employee, Clinton Seager. 23^ go as if no notice had been given at all. Contract clauses are often very specific in this regard, as indicated in the opinion of one arbitrator: The contract does not require that the absent employee 'send word'; it requires that the Company receive notice. It is a strict requirement, but I did not make the contract. There is no question that the employee has the responsi bility to see that notice is received. However, where the con tract wording may be somewhat less exacting, and it is obvious that no wilful absenteeism was intended, arbitrators will give due consideration to sincere effort made by the employee to 95 report. 90 St. Louis Car Company, 5 LA 572 (V. E. Wardlaw, October 30, 19^6). The employer's established policy was to require specific permission for absences. In spite of this, the employee took a week off without requesting and. waiting for permission, simply reporting by way of a relative that he would be absent. His discharge was sustained by the arbi trator on the grounds that he needed permission to be absent. 9lf Pacific Mills. 2 LA 329 (W. P. McCoy, April 4, 19^5). The employee was absent because of illness. The contract stated that unless the Company receives notice from the employee on the third day of absence, the employee shall be deemed to have severed employment. The employee sent the notice on the last day through her son who delivered the message to an employee, who then failed to deliver the message to supervision when he couldn't find the person to whom he was supposed to deliver it. See also: General Motors Corporation. Decision E-190 (B. T. Seward, January 5> 19*+^) • ^ Buffalo-SpringfieldBoiler Company. 8 LA 212 (C. G. Hampton, May 23, 19^7)• The employee asked a fellow- worker to notify the Company that he was ill and unable to work. When the fellow-worker neglected to give notice of the illness, - 235 Also, it may be up to the company to prove that negli gence on its part was not the reason for lack of receipt of notice, especially if there is some verification of the 96 employee's effort to get notice to the company. Although, it is reasonable for the Company to require that employees report to a particular office or official, it may be considered 95 (Continued) the Company discharged the employee who had sent the message which hadn't arrived. The arbitrator reinstated him, however, because he considered that the employee had made a bona fide effort to notify the Company. "It is evident that the intent [of the rule] was to protect the Company against wilful absen teeism which is clearly not present in this case ..." stated the arbitrator. Also see: Walter Butler Shipbuilders. Inc., 1 ALAA Par. 6?,0b9 (C. M. Updegraff, August 26. 19M O . The employee was absent because of illness and sent his son to notify the Absentee Department as required by the company rule. For some reason the records did not show that such notification was received. The arbitrator found the father and son involved, both employees of the Company, had "an excellent reputation for reliability and veracity," and the facts also disclosed that the office to which they were supposed to report was a busy one, probably understaffed. Therefore, the arbitrator stated: "With the evidence almost at a balance, and undoubtedly good faith on both sides, the . . . arbitrator is persuaded that a proper effort to give notice was made. ..." 9^ Bell Aircraft Corporation. 1 LA 281 (J. A. Griffin, n.d.). The employee called the plant twice to report his absence. The first call was recorded; the second call was not. The arbitrator ruled that the failure to record the second call was apparently due to a clerical error, since there was also evidence that another call from the doctor treating the employee was confused by the Company office staff. The call by the doctor, together with his certificate testifying that both the employee and his wife had actually been ill, as well as the fact that the employee had not been out the three full days permitted under the contract, were considered extenuating circumstances. Supra, P- 195' for details on acceptance of the doctor's certificate. 236 '•over-technical” when the employee is not in a position to know of the technicality, and has otherwise made a conscien- 97 tious effort to abide by the rules. Similarly, if an employee fails to realize the necessity of reporting to work when he is aware that a substitute has been put in his place, 98 such reasonable error is considered extenuating. For, in general, the test applied by arbitrators in departing from the rule that notice must be received and permission granted for absence is whether wilful or careless absence is indicated 97 Erie Resistor Gornoration. 5 LA l6l (A. C. Lappin, September 18, 194-8), The employee was transferred from one foreman to another one day before her absence due to illness. She had the impression that the transfer was temporary and, therefore, when reporting her illness, gave the notice to her original foreman. Since the rule required‘that employees notify their foreman, the Company discharged her, indicating that it was the new foreman she should have notified. The arbitrator decided this was too fine a distinction, and “that in notifying [her] foreman on two occasions, she gave management proper and adequate notice inmost substantial compliance with [the] rules contract and practices , , ,“ See supra, p. 222 for other facts, ^ Fairfield Paper Company. *+ LA 1 (D. E, Maiting, July 11, 19^+6) . The employee1 s car had broken down while he was on his way to work. He called the Company to report that he would be late, and was excused. He was delayed a bit longer than expected, and when he arrived home, learned that his brother-in-law had been called in to work his shift. This was in accordance with plant practice. He considered that it was, therefore, unnecessary to report any further that day. Mien he reported the following day, he was informed of his discharge. The arbitrator reinstated him, on the basis that original failure to report had been due to circumstances beyond his con trol, and the dependence on his not being needed since plant practice provided for the substitution satisfactorily was con sidered a reasonable explanation. 237 by the surrounding circumstances and attitude of the employee. Special consideration is sometimes extended to veterans because of the problems of newness to the situation, and of readjust- 4. 9 9 ment. 8. Cases Illustrating Past Practice and Its Effect Past practice has been touched upon in many cases through out the chapter on absenteeism. Hence, it needs only a brief additional treatment here. The consistency and firmness with which plant rules are applied throughout the plant establishes the past practice. If the plant practice has been loose or informal with regard to granting of leaves of absence or the necessity for receiving permission for absences, arbitrators tend to give the employee the benefit of the doubt. This principle applies especially when the established practice seems to be at variance with the plant rule. 99 Consolidated Steel Corporation. 2 LA 179 (G. Cheney, March 19, 191 +£>) . Apparently, troubled by an injury suffered by a friend living in another city, the employee left suddenly without securing permission, but sent a letter to the Company explaining his absence. The Company sent him a telegram Cto his home address) stating that his employment was terminated because of unauthorized absenteeism. Neither this telegram nor a later one reached the employee personally until his return to the city some weeks later. The arbitrator believed that in view of the Selective Service Law and the employee's veteran status, the penalty was too severe, despite the fact that the employee was at fault. 238 Where a company permits oral notice and permission for absences, the employer will be expected to sustain the burden of producing decisive factual proof that such notice was not received. In a case on this point, the arbitrator stated: All of this in the opinion of the arbitrator shows less of blame or fault on the part of either [the employee ] or the superintendent than on the part of the system of industrial relations here. Both par ties took the risk of such an eventuality . • • when they agreed to continue the oral-notice scheme or when they forgot to introduce a better one.100 Although an employer is within his rights in requesting that his employees give notice of intended absences to certain members of supervision or to a particular department, if the plant practice has been to accept reports made to an office different from the one stated in the plant rule, the employer may not be able to justify a disciplinary action for failure 101 to give notice according to the rule. American Liberty Oil Companyt 5 LA *+02 (P. A. Car michael, September 27 j 19^o)• The employee had asked for leave orally and the foreman claimed that he could not recall granting permission for such leave. However, he did concede that he probably had “a conversation1 1 with the employee in connection with the request for leave. The employee took the leave, and upon his return was discharged for allegedly being absent from work without permission. The arbitrator ordered his reinstatement with back pay, primarily because the evidence as to whether or not he gave proper notice was contradictory and inconclusive, stating: fl. . . it is by no means clear .. . whether reasonable notice was given. . . . That some kind of notice was given is evident. . . International Harvester Company. 6 LA 73 (A. C. Lappin, December 11, 19^6). In this situation the Company had allowed the employees to establish the practice of notifying the 239 An employer’s past practice in accepting ’ ’reasonable excuses” for unreported absences may determine whether dis cipline is justified in the event of an unreported absence where a reasonable excuse is given. If an employer’s past practice in connection with unreported and unexcused absences is sound in principle, but is improperly applied, the arbitrator will not be likely to (Continued) dispensary regarding all absences. An employee who did notify the dispensary of his intended absence because of personal bus iness was subsequently discharged for failing to report such absence to his foreman, in accordance with the plant rule. However, the arbitrator held that: "The practice of notifying the dispensary regarding all. leaves of absence was definitely a proven practice. . . . Hence notice to the dispensary was proper." The arbitrator, therefore, ordered the employee reinstated with back pay. Cf. supra. footnote 51 j p. 20*+. 1 o? Copeland Refrigeration Corporation. 8 LA 923 (P. N. Lehoczky, November 9, 19^7)• ^he Company had been in the practice of accepting reasonable excuses for absence. Although the employee involved had failed to give any reason for her absence at first, she later brought in a doctor’s certificate showing that her absence was due to tonsilitis. The arbitrator considered this a reasonable excuse, and, in the light of the employer’s past acceptance of reasonable excuses, ordered that the warning notice given the employee be removed from her record. Another example is that of the Amazon Cotton, Mills« 6 LA 139 (D. B. Maggs, January 15, 19^7). The arbitrator pointed out that "nothing in the agreement specifies what dis ciplinary measures are proper if an employee is absent from work without reasonable cause or fails to ’endeavor to notify' the company of a prospective absence because of illness or other reasonable cause." (p. 1^0) The arbitrator also found ". • • that in the past while employees have been disciplined for habitual absences without notification, no employee has ever been disciplined for a single such absence." Thus he concluded that "... until the company takes appropriate steps to inform its employees of a new stricter policy, .. . a single such absence does not supply ’proper cause' for either a discharge or suspension." (p. l^l). 2kO sustain the company's disciplinary action based upon the improper application* Thus, in a case where the arbitrator found that super vision was not uniformly applying, disciplinary layoffs for unexcused and unreported absences, he ruled this to be a dis criminatory application of an otherwise reasonable policy. In the words of the arbitrators • . • Testimony at the hearing disclosed the fact that foremen do not apply the penalty with any uniformity. If work is available but not urgently needed, the penalty may be imposed. But if work is available and urgently needed, the penalty is not applied. This means that whether or not a man gets the penalty is dependent solely on the foreman's estimate of the urgency of production needs. A penalty applied in this way may be understandable strictly from a production point of view, but it is bound to be discriminatory. It is a fundamental principle that the penalty should fit the crime and not be dependent on extraneous circumstances.1Q3 The arbitrator likewise referred to an earlier decision which he rendered for the same company under similar circumstances. This former instance also contained an improper application of a plant policy, namely that: . . . indiscriminate application of a one-day sus pension makes no distinction between the chronic Bethlehem Steel Company. 7 LA (W. E. Sirakin, May 1, 19*+7)» ^he past practice and custom of the Company, tacitly agreed to by .the Union, was to refuse to assign work to employees who reported for work after having been absent the day before without notice or valid excuse. Assignments were on a day-to-day basis, and when all. available work had already been assigned, the Company was under no obligation to send other employees home to provide work for the absentees* 2hl absentee, the occasional absentee and even the man with an otherwise perfect record. . . . it is suggested that the parties attempt to agree on criteria to distinguish a chronic absentee from an employee who has a satisfactory record.1°^ As shown above, the disciplining of employees for unexcused or unreported absences must be related to the viola tion, and not to the requirements of production schedules. However, this is not the case in connection with the granting or denial of vacations or leaves of absence. The decision with respect to such matters is quite often influ enced by production needs. Hence, even if the denial of such vacations or leaves is inconsistent with the past practice of the company, it may be considered proper by arbitrators. So long as the company has clearly and adequately indicated to its employees the changed conditions, and so long as super vision has not acted in an arbitrary manner, employees may not rely upon past practice to protect them when they take their 105 vacations without authorization. Ibid., pp. *+83 Inland Steel CompanyT 1 LA 363 (J. B. Courshon, January 2*+, 19^-6^. In this case the contract between the par ties provided that no vacation will be recognized unless authorized by the department superintendent. ."It.is quite evident that," states the arbitrator, "... some of the employees were granted vacations during the established vacation period. It is, therefore, only reasonable to suppose that_the granting of vacations to employees, notwithstanding the fact that they had previously received vacation pay in lieu of time off, was a practice which grew up as the result of the desire on -che 2b2 VI. SECTION D. DENIAL OF BENEFITS AS A PENALTY FOR ABSENTEEISM 1. General Discussion In an effort to curb absenteeism, employers sometimes resort,as a disciplinary measure,to the policy of denying such benefits as holiday pay, overtime work, vacation pay, and merit increases. The right of management to deprive employees of these benefits is a question frequently brought to arbitra tion. Industrial experience indicates that absenteeism rises 106 sharply just prior to and immediately after a holiday. Thus conditional pay provisions relating to holidays are not at all unusual and are generally quite precise in their requirements. Some examples of such clauses are as follows: Employees will not receive pay for holidays not worked under the following conditions; if they are part-time or temporary employees (not probationary ^ (Continued) part of both parties that employees have time off each year if possible . . . if same would not interfere with production schedules and general operation of the plant. The fact that [the] employee . . . had in previous years received vacation pay . . . in lieu of time off and subsequently was allowed to take a vacation did not in itself establish an irrevocable practice but merely showed that the superintendent of his department deemed it possible for him to take time off for vacation purposes; but, in the year in question, the super intendent found it impossible to permit [the] employee . • • to take time off for a vacation at the time he had requested same.*1 (pp. 366-36 7). Brown & Sharpe Manufacturing Company, supra, p. 228, footnote 87. 2*f3 employees); employees who are absent the work day preceding the holiday or are absent the work day following such holiday; employees laid off for lack of work or suspended or discharged for good and just cause; employees who,_ upon request by the Company refuse or fail to report for work on such holidays; holidays occurring during an employee's vacation; holidays occurring during an employee's leave of absence; and holidays not falling on Monday through Friday (except that this shall not apply in the case of employees regularly scheduled to work on Saturday, and holidays falling on Sunday shall be observed on Monday) ,107 Employees shall be off on . . . legal holidays and shall receive eight (8) hours' base pay pro vided, however, that the required schedule of hours shall be worked during that week or good cause shall be shown for not having worked the required schedule of hours The following shall be holidays during the term for which employees shall be paid without working, at the employee's then regular hourly rate for eight (8) hours; • . • ; provided that the employee works his regular shift on the regular work days immedi ately preceding and following the holiday, unless prevented from working because within two (2) months immediately preceding the holiday day, he was either bona fide ill or laid off.10' An employee shall be eligible for holiday pay only if he works on the day before and upon the day after such holiday, except in the case of prearranged and premeditated absence.110 John Deere Tractor Company. 2 ALAA Par. 6 7 ,7 8 2 (C. M. Updegraff, August 15V 19*+7) • For discussion of case, infraT pp. 251, 258. 10® Foote Brothers Gear & Machine Corporation. 2 LA 8^- (A. E. Epstein, March 6, 19^-6). For discussion of case, infra, p. 2*f9. Steinwav & Sons. 7 LA 289 (J. J. Justin, May 9, 19*+7) • Premier Metal Etching Company. 3 LA .220 (M. J. Kaplan, May 5, 19^67.For discussion of case, infra, p. 250. 2M+ Despite the careful language of these clauses, arbitra tors are frequently called upon to interpret them in the light of unanticipated developments. Each of the clauses included above was subject to sueh interpretation. 2. Cases Illustrating Denial of Holiday Pay as a Penalty for Absenteeism Hhen conditions are explicitly set forth in a conditional holiday pay clause, even if the absence involved is not inten- 111 tional or wilful, the intentions of the clause as excluding only the written exceptions will, in most cases, be interpreted literally. Thus the arbitrator in the Steinwav & Sons case states: The provision is clear, explicit and unequivocal. It says just what it means. An employee is entitled to receive the holiday benefits if he works the day before and the day after the holiday, unless prevented from doing so by illness or layoff. These are the Steinwav & Sons. 7 LA' 289 (J. J. Justin, Hay 9, 19^7)• “On a regular work day immediately preceding the holi day in question, a snow storm of blizzard proportions struck the New York . . . area. . . . Normal means of transportation to the plant were disrupted and difficulties were encountered by the employees in getting to work on that day.” Both parties agreed that the failure to report for work of the employees involved was attributable to the adverse weather conditions. However the contract includes no exception to cover weather (clause shown in footnote 109, supra. p. 2^3, being otherwise quite specific). The arbitrator agreed with the Company that to extend the contract provision to include a further excep tion of “special circumstances,” as requested by the Union, would be improper, since not arbitral interpretation, but collective bargaining is the means for such an extension. 2b5 only two exceptions. No other, different or addi tional exceptions can be imputed or implied in the provision. To do so, under the cloak of interpre tation, would be to write a new provision for the parties. . . . That a strict application of this provision may in particular cases work a hardship upon one party or the other, does not give warrant to a third party to change or modify it. . . . The preponderance of the proof establishes that such was the intention of the parties, and this conclusion is confirmed by other provisions of the contract relied upon by the Company to show such intention. When the clause is less clear or refers to “good cause” there is considerable room for interpretation concerning the reasonableness of the employee's cause for absence or his right to take leave against arbitrary refusal of a super- 113 visor. [The] arbitrator is impelled to rule that the intent of the clause was to have a worker work on the date preceding and the day following in the same manner as he would ordinarily be expected to work on a regularly scheduled workday. Ordinarily a worker is not considered to be absent, from work when he reports for work and does work a substantial part of the day, and absents himself part of the day for a proper reason. The arbitrary refusal to permit a worker to take neces sary time off, by a supervisor, may not properly 112 Ibid., p. 291. ■ * - ■ * • 3 The United States Rubber Company. 9 LA 99 (M. Copelof, September 23, 19*+7) • Ihe employee had requested half a day off on the days before and after a holiday, stating that he needed the time off to assist his mover in moving into his new house which had just been completed, and he could not secure the services of a mover for any other time. The arbitrator con sidered this a compelling reason ldiich should justify the employee's taking the time off under ordinary conditions. 21+6 be classified as an absence from work by such a worker. On the other hand, good shop procedure and discipline requires that workers secure per mission before leaving their work ahead of time. There is a mutuality of interest between the Com pany and the workers which requires the workers* regular attendance and the Company's consideration for an individual's needs when such attendance is not possible. In the instant case of . . . Ethe employee], it appears that his absence of part of the day in order to attend to the moving needs of his home was a reasonable request and he therefore should not be counted as having been absent from work on either the day preceding or the day following, and the Arbitrator rules that in this case he should receive compensation for the holiday. This, in the Arbitrator's opinion is the only possible common- sense application of the clause as written, which is concededly ambiguous. Concerning the other workers involved, the same rule of reason is to apply. If they can support their claim, factually, that their absence from work for part of the time either on the preceding or following day, was urgently needed, they should not be subjected to the loss of pay for the . . . holiday. If, however, their absence, without per mission, was simply because they felt so inclined, it must be recognized . . . that the Company was subjected to a loss of production as a result of their absence, which absence was avoidable if they realized their rightful duty, and therefore they should not claim the benefit of holiday pay, under the contract, as it evidently was intended by this provision to keep people at work on the day pre-, ceding and the day following the paid holiday. Ibid.. p. 101. The Union brought up a number of cases on the basis that the Company had paid some workers who were absent part of the two days, but withheld payment from others. Since the language of the clause did not consider the question of whether part of a day would be acceptable toward holiday pay, the Union was seeking through arbitration the determination of the issue. By request of the parties, the arbitrator suggested recommendations for an amplified clause. 2b? Another case on the same issue discusses the principle underlying it with such completeness that it is worth reproduc ing here at some lengths Under the Company's contention, if a worker should lose one minute on a shift on either day, he would forfeit his holiday pay* Under the Union's conten tion, if a worker reported for work and worked a single minute only, or if he reported for work one minute before quitting time, he would be entitled to his holiday pay* Both contentions appear to be extreme and impracticable in the light of experience. The apparent ambiguity of the meaning of the word creates a necessity for interpretation. Holiday pay and other "fringe" elements are usually considered as part of an employee* s annual comoensa- tion? as his normal due, and not as & gift, whereby the deprivation thereof may be considered in the nature of a penalty or punishment for some infraction or default [Italics not in the original3* The obvious purpose of such provision is to maintain normal production on workdays near the holidays and to counteract a common tendency to 'stretch' holidays. In this arbitrator's opinion, there is a difference between 'stretching* a holiday and arranging the necessary adjustments to make it available. General characterizations are per missible when justified; but to so call every enlarge ment of time, no matter how slight or impelling, under abstract rules of conduct, is to overlook that indus trial relations are human relations, involving frail ties to which flesh is heir. From the language and context of this provision, it may be fairly inferred that the parties intended to refrain from laying down any hard and fast rule or setting out a straight-jacket formula, so that strong impulsions and reasonable necessities might receive tolerant consideration at such times in the weighing of the many factors involved, including the previous work record and the good faith of the employee. 5 John Deere Tractor Company. 9 LA 22 (G. A. Gorder, December *+, 19H-7TIThree employees were denied holiday pay on the basis of their absence on part of a day just before the holiday. The holiday clause required attendance on the 21+8 Illness or injury may come under the heading of “good cause, 1 1 if the wording of the conditional holiday pay clause is not specific as to these matters. Arbitrators agree on this, but have different opinions on the issue of whether the employer is obliged to pay for holidays which occur within the period of an employee's extended illness. Thus, one arbitrator states: Contractual provisions covering pay for legal holidays are generally intended to compensate an employee for a legal holiday not worked where the employee would otherwise be able and available for work. . . . The provision under discussion, how ever, • . • adds a proviso that an employee, in order to be eligible for the holiday pay, must have worked the required schedule of hours during the par ticular week in which the holiday falls or can show good cause for not having worked the required schedule. The parties did not set forth the basis for the inclu sion of the proviso and, in the absence of an express statement, it must be interpreted in the light of ordinary industrial custom and practice. Generally, such provisos are intended to discourage voluntary absence from work. . . . Time off immediately prior and immediately subsequent to a legal holiday is usually subjected to a higher degree of scrutiny than would otherwise be the case. • • • ^ (Continued) day before and the day after the holiday. One employee left only one hour early to catch a train (after midnight) in order to spend the holiday with friends and relatives. Another left after six and a half hours work to attend a wedding. In both cases the employees had good records of work attendance. The arbitrator believed that both were reasonable requests and could not readily be postponed. However, the third employee had left four and a half hours early to conduct a union meet ing, not of an emergency nature. This, the arbitrator believed, could hardly be considered as substantially a day's work, and could have been scheduled outside of working hours; therefore, the employee was not deserving of the holiday pay. 2b9 The union contends that, if the clause is inter preted literally, the three employees involved herein have all shown good cause for not having worked the required schedule of hours during the weeks in ques tion. They were ill and under the doctor’s care before, during, and after the particular weeks. The issue before the arbitrator, however, is not whether illness is a good cause for failure to work but whether employees Unable to work during a particular period under the particular circumstances of these cases come within the holiday pay provisions of the contract. A strictly literal interpretation of the clause in issue would permit payment for holidays to employees who were ill for indefinite periods, who were on leaves of absence, or who were laid off for indefinite periods. The parties, on the basis of a reasonable interpretation of the clause according to the customary usage in industrial contract, obviously did not intend to cover such instances. Likewise an arbitrary period cannot be fixed for the purpose of defining rights under the clause. It must be assumed, however, that some limitation exists. In the instant cases all of the employees were ill and unable to work for periods in excess of the workweek in which the holidays occurred. It is the opinion of the arbitrator that under a reason able interpretation of the holiday pay clause, none of them are entitled to receive pay for the holidays as claimed. Another interpretation of a somewhat similar situation however,, produced an opposite conclusion. Absence for illness, according to the union in this ease, had always been construed to fall within the exception to the conditional holiday pay clause, namely ’ ’prearranged and premeditated absence.” The arbitrator stated: 1 1 ^ Foote Brothers Gear & Machine Corporation. 2 LA 93 (A. E. Epstein, March 6, 19^0). For clause, supra, p. 2^3. 250 Holiday pay is provided for all employees on the company payroll who are eligible within the meaning of the quoted 1 holiday pay]" clause. An employee who has been in the company's employ • . • for a period of ten months prior to his injury and is thereafter compelled, by reason of such occupa tional injury to absent himself, continued neverthe less to be on the company's payroll for that period. There is no record of the company*s having directed ' the layoff of the employee. On the contrary it con cedes the retention of the employee on its payroll during the period in question. In the absence of any clearcut provision restricting the right of employees to holiday pay other than that contained in . . . [this] Section of the contract, the Arbi trator has no alternative but to rule that the employee in question is entitled to holiday pay for . . . [three holidays 1.11/ Where the term "illness" actually is written into the holiday provision, even if the illness is fairly lengthy, it 118 is less likely to be subject to varying interpretations. Saturdays or Sundays, ordinarily days of rest, are not generally considered as part of the regular work week. Some times, however, the production needs of the plaint require that work be scheduled on these non-work days, in which case most employers pay premium pay to the employees scheduled Premier Metal Etching Company, 3 LA 228 (M. J. Kaplan, May 5, 19^6X1 For clause, supra, p. 2M-3. Kiernan-Hughes Company. Inc.. 3 IA *89 (M. S. Trotta, May 1, 19^677 The employee was absent on account of illness from December 19 to January 2, including both the Christmas and New Year's Day holidays. On her return she presented a doctor's certificate attesting to her illness. The Company refused to pay for the two holidays. The union based its arguments on the contract clauses which stated as the two exceptions "consent of the management" and "illness." The arbitrator agreed that the employee fell within the exceptions, and was entitled to pay for the holidays. o 251 119 for work. These non-work and, premium days are a frequent source of confusion in connection with conditional holiday ■ provisions which simply state that employees are required to work the day before and the day after a holiday. An illustration of this is to be found in the John Deere Tractor Company case. In it, the arbitrator states: Full discretion lies with the employer whether it will use all of the working force on Saturday and pay the penalty or refrain from doing so, unless and until it has made a contract by which it sur renders this managerial prerogative. It follows that the employer may discipline, reasonably and justly, any employees who fail or refuse to work overtime when called upon to do so, within reason. [p . 69,0331* He goes on to point out that since holiday pay rights under the contract are ''gauged to the regular weekly work schedule by reason of the fact that holidays which fall on Saturdays and Sundays are not paid for, except in case of employees 120 'regularly scheduled to work on Saturdays,'" . . . it may be inferred that a man is entitled to holiday pay if he reports for work on his regular work day before the holidays, and his next regular 119 For an Interesting discussion on the "rationale" of holidays with pay and the effect on non-work days, layoffs, leaves of absence, etc., sees Reliable Optical Co.T Inc., 7 LA 257 (J* Rosenfarb, May 2, 19*+7), especially p. 260; K. Stenzel and Sons. 8 LA 77, (J. Rosenfarb, July 2 6, 19^7)5 Sternwild Knitting Mills. Inc.. 6 LA 586 (B. J. KIrsh, February 19, 19^+7). F. G. Candy Manufacturing Company. Inc.. 9 LA 139, (H. W. Davey, October 10, 19 V?) * 1 ?o John Deere Tractor Company. 2 ALAA, Par. 67,782 (C. M. Updegraff, August 15, 19^+7) • Clause, supra, p. 2^3* 252 work day, thereafter. . . . The men here concerned, however, knew that they were expected to work Saturday. They had been so notified by management. Thus Saturday had become, by force of such notice and by reason of the right of the company to require work on premium days, their 'work day following such holiday.' . • • If the contract made no provisions for holidays, or holiday pay, the company would have authority to schedule overtime work and discipline men ■who refused to execute it unless such course violates express terms of a contract or law. It would seem to follow that the contract must be inter preted to mean that absence on any work day immedi ately following a holiday, whether it is a regularly scheduled day within a work week, or a specially scheduled premium work day, will disqualify the absentee from receiving the holiday pay. The arbitrator took pains to point out further thati . . . the contract eliminates holiday pay for employees 'absent the work day following such holi day* ; the contract does not require that it be a 'regular work day.' The omission of the word 'regu lar' at this point is significant and decisive. If, in some future collective bargaining session such, word were to be inserted in the contract, the hold ing on this type of case would necessarily be reversed. 3-21 Another case which illustrates how important it is to differentiate wording in connection with work days and days 122 of rest is that of Armour and Company. The arbitrator 3-21 ibid.. p. 69,033*’ 122 Armour and Company. 9 LA 338 (H. M. Gilden, November 12, 19^7)* In this case the holiday fell on a Saturday. The employees worked on Friday, but remained out over the holiday (Saturday), the non-work day (Sunday), and also their next scheduled work day (Monday). The Union claimed that Monday was the beginning of a new work week and had no relation to the thirty-six hours connected with holiday pay (namely, Friday, Saturday and Sunday). In being ready and available for work on Sunday, the Union argued, the employees fulfilled 253 indicates: J / . • • [ The holiday clause] does not differentiate between a work day and a day of rest. That para graph does not provide that, if a non-seheduled work day follows the holiday, the employees must report and work on the succeeding day. In the instant case, a non-work day (Sunday) happens to be the day after the holiday. [ The contract ] Section . . . does not make any special exception for that contingency. The clause in question states, in part: “provided they report for work and work the hours as ordered on the day before and the day after the holiday. . . .“ The company’s position on this issue tsays the arbitrator] assumes that the words ’day after the holiday' were intended to mean a work day. . . . It is quite possible that the Company may have expected that a regular scheduled day of rest would not be counted as the day after the holiday. If that is so, then the Company failed to have its theory incorporated into the contract. While the Company’s viewpoint may be a sound precept to advance at the collective bargaining table. the Arbitrator cannot shy away from the specific langu age of the contract. If It was intended that the day after the holiday should exclude Sunday and refer exclusively to a scheduled work day then it is reasonable to expect the contract to contain apt (Continued) their contractual requirements. Had they been called in on Sunday, they would have had to work in order to be eligible for the holiday pay. However, they were not called in. According to the contract the payroll week was Monday through Sunday. The Company stated that the meaning does not depend on whether the payroll week has or has not been completed at the time the holiday occurs, and that Sunday is not a work day unless work is scheduled. Also that being ready and available for work is not the same as the meaning implied by “providing they report for work.” 2$b language to make such intention clear. The Arbi trator cannot give this effect to [the] Section . . . without taking away from the parties some thing that they have already bargained out. Such action on his part would be an improper*invasion of the area of collective bargaining. Where the contractual provision on holiday pay is in conflict with the claims of one of the parties, the criterion of past practice is often utilized. In a case where the employer had posted a notice each year indicating the policy of not paying for holidays if the employees were out the day preceding or following the holiday, and the union had evidenced no objection, the arbitrator ruled that the inference must be that the practice was accepted. The contract clause made no mention of the condition. However, the employer*s action in posting notice served to underscore 12b the past practice. In contrast, there is the Warner Brothers Cartoons case, where past practice was held to be inapplicable because Ibid., p. 69,327. The arbitrator indicated that “There is no question that when the holiday pay provisions were negotiated, the parties had in mind the fact [that] the holi days may fall on week ends as well as on the beginning or the middle of the week.'* "Employees are expected to report for work only in accordance with a designated work schedule. Since the three employees were not scheduled to report for Sunday work, they were not required to report. . . . It follows, therefore, that their failure to report on that day did not, in and of itself, disqualify them from eligibility. Sunday was the day after the holiday • • . and . . . cannot be completely ignored." Colgate-Palmolive Peet Conmanv. 2 LA 572 (J. J. Blair, April b, 19^6). 2 55 (1) the clause “is neither ambiguous nor general but, rather . . . is very clear'1; and, the arbitrator goes on to say: It is a recognized and sound principle of collec tive bargaining that the past practice of parties shall be accepted as establishing the intent of a contractual provision which is so ambiguous or so general as to be subject to a different interpreta tions . The language of [the] Clause . . . appears to be quite clear and unambiguous. It specifies that each employee shall receive straight-time pay for the six named holidays if they are not worked. The provision itself attaches no conditions to this right. ... Since this is so, consideration need only be given . . . to such conditions as might attach by reason of the inherent rights of the respective parties under the contract. In effect, the company argues that it has the inherent right to require an employee to work the day before or the day after a holiday to be entitled to holiday pay and cites past industry prac tice to support its argument. Apparently, it is the belief of the company that it has the right to impose this condition 'to maintain discipline and efficiency,' which is stated as a 'Producer's right' in [another clause] . . . of the contract. Point 2 of the arbitrator's reasoning, therefore, was: Each employee involved . . . received express permis sion to be absent during the week in question. The company had full opportunity to deny or grant these leaves of absence in such a manner as “to maintain discipline and efficiency," and it would be improper and an infringement on the contract rights of the employees to permit the company to attach a condition which is not necessary to protect its own rights. After the leave of absence, the employees all returned to work without loss of any other contract rights, such as seniority, vacation or sick leave credit, etc. There would appear to be no good reason why the right to holiday pay should be treated any differ ently from the employees* other contract rights in the absence of a definite provision in the contract to that effect. In such circumstances, it would be both unsound and 256 unreasonable to cast aside the evident meaning of the contractual provision in favor of the state ment of past practices.125 3. Gases Illustrating Denial of Vacation Pay as a Penalty for Absenteeism Just as in the case of holiday pay, vacations with pay have come to be considered a form of wages to which employees are entitled as a matter of earned right, rather than as a gratuity granted by the employer. Consequently, when an employee leaves his employment, even by reason of discharge, he generally receives his vacation pay in so far as it is 126 earned, unless there is a contract provision to the con trary. Some employers also have secured qualifying provisions in connection with absences, just as with holiday pay. Warner Brothers Cartoons, Inc., 2 LA 67 (L. A. Peifer, March 8, 194-6). For discussion of this point, sees Goodyear Tire and Rubber Company. 3 LA 257 (W. P. McCoy, May l5} 194-6). In it, the arbitrator states: "It has now become the accepted view that vacations are a collateral form of wages— i.e., they are earned, not a mere gratuity.“tp« 258)* See also: Andrew Steel Company. 1 ALAA Par. 67,077 (W. E. Hotchkiss, December 10, 194^2)V Republic Oil Refining Company. 2 LA 305 (G. H. Cavanaugh, January 31, 19^-6)t Foote BrothersGear & Machine Corporation. 2 LA 8^- (A. E. Epstein, March 6, 1946), employee, Olejniczak. 257 In a case where the contract specified "a record of twelve (12) months* continuous employment" immediately pre ceding the vacation period, as an eligibility requirement for vacation pay, the arbitrator agreed with the employer that an absence of approximately two weeks without company authoriza tion broke the “continuous employment" status.In his decision, he stated: Usually a vacation is granted for faithful, meritorious, or actual service rendered by an employee over a given period of time. [p. 276]. This decision was cited by the employer in a later case, where, however, the absence involved had been approved. The arbitrator pointed out this difference as being very material, as follows: In the Stearms case the employees were absent without permission. . . . If . . . [the employee in the instant case]" had been absent without permission, I would have no hesitation in sustaining the company’s position.12® 127 Stearms Goal and Lumber Company. 1 LA 27b (J. E. Dwyer, January 17, 19^77 Another point involved is not considered here, because it has no direct bearing, although it is of inter est. 128 Texas Textile Mills. 5 LA 76b (W. P. McCoy, Novem ber, 18, V)b6). " The employee was admittedly absent twelve days during the period in question. “In June or July, when other employees were taking vacations, ... ‘ [the employee involved] was asked by her overseer whether she intended to take a vacation, and when she replied in the affirmative, he requested her to postpone it till September because of produc tion needs. She acquiesced. In September, . . . [the over seer? went to her and told her that if she wanted a vacation, she could take it then, which she did. • . . It was at the instance of her overseer and for the convenience of the com pany that she postponed it. . . . Fairness would seem to dic tate that she not be penalized for her cooperation '/[in addi tion to the contractual basis]." 258 The contract vacation bonus provision specified that no bonus would be paid "if an employee misses eleven (11) or more regu lar work days . . . with such an excuse as the Company in its discretion shall consider sufficient.“ Therefore, "the ques tion narrows down,*1 states the arbitrator: . . . to whether the prior permission of the over seer to be absent for six days constitutes 1 such an excuse as the Company in its discretion shall consider sufficient.1 Absence without excuse is ground for disciplinary action, layoff or discharge. Surely the company would not contend that [the employee] could, have been disciplined for the absence taken with her overseer1s permission. If she could not have been disciplined, it necessarily follows that she had sufficient excuse. I have not overlooked the qualifying words making the company the sole judge of the sufficiency of the excuse. The company can act only through its agents, and, when an authorized agent acts in a matter coming within his authority, it is the com pany which is acting. ... To expressly excuse an employee from attendance and then to assert that the absence was without excuse is a palpable contradition. [p. 7&b3. b. Cases Illustrating Denial of Overtime as a Penalty for Absenteeism Overtime is generally that time worked outside of the regular work-days, (usually Saturdays and Sundays). There fore extra payment for time worked on these days is standard 129 practice. jn a decision previously cited under holiday clauses, supra, p. 251, arbitrator C. M. Updegraff states: "The usually accepted purpose of providing for 1 penalty 259 For the obvious reason that employees might be tempted to remain away on straight-time days and come in on the premium pay days, eligibility for this higher rate of pay is ordinarily predicated on the employee’s presence during the entire work week preceding the overtime pay period. Hence denial of sixth and seventh day premium pay is considered a reasonable form of discipline for absenteeism. The right of the employer to do this is rarely disputed; but it is not unlimited, unless the contract so provides. Otherwise ”;just cause” must be distinguished in penalizing employees who are absent. Two cases decided by the same arbitrator for the same Company, but at different times, will serve to illustrate this. In the first case, the contract provided for payment of time and one half for work performed on the sixth day in the established work week. The employer, in an attempt to (Continued) time’ or ’overtime pay’ is not so much to reward the overtime worker as to create a deterrent to keep the employer from requiring unduly long and burdensome work shifts. In a sense it has a tendency to 'spread the work’ rather than to reward the overtime worker, though as a matter of fact, it does operate to accomplish the latter purpose. Theoretically, at least, workers in general prefer not to work overtime, though, obviously, there are many exceptions.” (p. 69,033)* John Deere Tractor Company. , 2..ALAA, Par. 6 7 ,7 82_(C. M. Updegraff, August 15, 19*47). 260 1^0 curb absenteeism, posted a notice on the bulletin board to the effect that employees absent of their own accord one or more days a week would not be entitled to Saturday work. Dur ing negotiation of the contract, the employer had attempted to obtain inclusion of the word “worked*1 after “sixth day,1 1 but the union had not agreed. Thus, when the union claimed that the bulletin board notice was a unilateral change, the arbitrator agreed that “by the policy announced in this bulle tin, the company in effect was introducing the change to * sixth day worked* it could not obtain during the negotiations.” The bulletin [states the arbitrator] makes no allowances or distinctions whatsoever— neither for the cause of the absence nor the extent of the absenteeism. It provided no rule of reason for making due allowances for just cause or excusable Walworth Company. 5 LA 551 (B. M. Selekman, November 9, 19^6). As described by the arbitrator: “This controversy arises from the difficulties precipitated by transition from war to peacetime production. Both sides agree that the objec tive of reducing absenteeism is an entirely valid one. They reveal considerable agreement on all the facts and issues. . . , . The case reveals an interesting blending of the ‘law*.,, . governing Saturday overtime as formulated in the agreement and the prevailing 1 custom* governing its allocation as it had grown up through administrative practice and interpretation. , . . . ... Iven during the war . . . the question had arisen whether an employee with an exceedingly poor attendance record retained the ’right* to be called in for Saturday work at overtime. „ ... [After] the pressures of war production . . . abated • • . the company was apparently convinced that what had to be toler ated during the war could and should now be corrected; and that, accordingly, Saturday overtime should be allocated only to those who had actually worked the full basic week. Any other interpretation management felt would fail to curb absentee ism, would work injustice on those who had good attendance records, and impose unwarranted increases in costs. In this spirit the notice . . . was posted on the bulletin board. .. (p.552) 261 absences. It simply denied to any employee absent - from work on any day in the basic work week title to the available Saturday overtime hitherto con^- sidered due him on the basis of his seniority.x3-L The arbitrator fully understood that the problem of controlling absenteeism was a real one, but felt that the com pany had made no effort "before . posting the bulletin to work out with the union formal rules defining what might be con sidered excusable absences." At the parties * reque st, the arbitrator assisted in the determination of such rules. He stated: The rules naturally must establish distinction between excusable and inexcusable absence, between legitimate personal causes for staying away from work and causes that represent dominantly a prefer ence that the employee may follow or not as he may choose.^32 In so far, therefore, as employees were denied available opportunities to work on Saturdays because of absences, they have just cause for complaint— If their absence was justified in terms of recognizedly 131 Ibid.. p. 553• Management. did not consider the bulletin to be a unilateral modification. It argued that there is no obligation on management's part to offer overtime work. Mien it became necessary, management stood ready to allocate it on the basis of seniority. "But common-sense meanings of these words must prevail5 overtime must represent premium pay for work actually additional to the regularly scheduled day or week* If men take time off during a given week for personal reasons, they lose the right to Saturday overtime pay." « 2 For another, case where the problem of excessive absenteeism was considered good reason for denial, of overtime, but again the company failed to establish any clear-cut absentee disciplinary policy or rule, see: Ingersoll-Rand Company. 7 LA 5&+ (M. M. Shipman, May 22, 19^7)» especially pp. 569-571 • 262 1^ legitimate excuses* In the second case, the same arbitrator, .was called upon to further interpret and. clarif y _ his previous decision in the matter of disciplinary layoffs* The arbitrator extended his int er.pr et ation of the prior, award to cover the matter of lay- 131* . offs, applying the same criteria*. In this decision the arbitrator stated: There exists no unqualified right to overtime work; to deny an employee available opportunity to over time work on the customary seniority basis becomes a matter of determining 1 just cause.' * • • an absentee who may have given less than the basic five days of work, may be denied Saturday over time unless he can establish his absence as a result of illness, death in the family, or religious holidays • Financial problems, household need, or other good and sufficient cause determining . (but not compelling) him to absent himself- of his own accord will forfeit his title to availahleSaturday loo Walworth, o p* cit.« p. 551 ** In his Award, the arbi trator stated: “Absence for good cause shall be absences due to any of the following conditions: Personal illness, serious illness or death in_ the immediate, family, .and. religious holi days.” Walworth Company* 6 LA 858 (B. M. Selekman,. March 20, 19^7) • The . employees in this case received an admittedly justified layoff as a penalty for breaking the rule against smoking. Since they did not work the full basic workweek, they were denied Saturday overtime* The employees claimed that the denial of Saturday work constituted- a double .penalty for a single infraction of the rule. The arbitrator disagreed for the reasons given above. See also: Ford Motor Companv. 1 ALAA Par. 67.027 (H. Shulman, November 21, 19W77 263 overtime. ^ Certainly, di seiplinary layoff, even less than such absences, can hardly claim the protec tion of the definition of 'good cause' defined by my decision in testing an employee's rights tinder the agreement• — • 5* Cases Illustrating Denial of Bonus as a Penalty for Absenteeism Since the principles involved in deprivation of bonus for purposes of reducing absenteeism are fairly similar to those connected -with deprivation of other fringe wages just considered, one case will be sufficient to illustrate this issue. The Pull man-Standard C ar-Manufacturing _ C ompanv had instituted a bonus system to assist in reducing scrap losses. As originally inaugurated, it included the provision that: If a molder has lost any time during the month, the superintendent is the deciding factor in deter mining who should receive the bonus. ^ See also and compare with: American Radiator & Standard Sanitary Corporation. 2 LA 245 (J* J. Blair, March 2 8, 1946;. The arbitrator in this case considered that under a contract providing premium pay for the sixth day of the work week even if there is absence for "justifiable reason," an absence, due to snowstorm was entitled to be considered "justi fiable reason." ^ ^Walworth og. cit.,p.i36Q. The arbitrator distinguished between disciplinary layoffs and.layoffs which occur for reasons beyond the employee * s control— for which he. could not _ justly be deprived of Saturday overtime work. On the other, hand "the layoff of the aggrieved employees falls in another category. The cause of their layoff in no way can be deemed 'beyond their control.' On the contrary, it was a disciplinary layoff for breaking a recognized and established rule. They chose to take the. chance, of . infraction: Jbhey accept their discipline as justified.1 1 (p. 850)* 26^ Later, the Company posted a notice stating: There is entirely too much absenteeism on days immediately following pay days and holidays, and, in the future when allowing the molders* and helpers' bonus, absentees on the days mentioned will under no condition be considered for the bonus. It is unfor tunate that the fairly, steady man must be made to suffer for the absences of the habitual absentee, but we must have a set rule to follow. As in the past, requested absence or absence due to sickness, accompanied by a doctor's certificate, will not penalizea man's bonus except, as stated above, that day after pay day sickness wiil. not be considered. The arbitrator agreed that the Company had.this right where absences were habitual whether the absence occurred on days following pay days or holidays or otherwise. He accepted the Company's statement that the originalprovision was intended for the purpose of cuttingdown "habitual absentee ism."- Therefore, it is proper for the.Company to reinforce the original provision with the posted notice. However, the arbitrator did not agree with the portion.of the notice which stated: "absentees on the days mentioned under no condition will be considered for the bonus•" For, said he: To deny the bonus to an employee otherwise quali fied to receive same because of absence on the days immediately following pay days and holidays regard less of the excuse or validity, of such absence, would, in the opinion of the arbitrator, constitute a change in the bonus plan, as the plan never intended so severe an application of the rule regarding.loss of any time to the extent that the loss of a day or days immediately following pay days and holidays would not, in any event, be excused. There was no historical, basis to support [such an interpretation!. The company.claims, no such strict application was made. . To have done.so at any time would have been an arbitrary and unwarranted application of the loss-of-time provision of the 265 6. Cases Illustrating Denial of Merit Increase as a Penalty for Absenteeism This is not a usual form of penalty, and few cases are available on it. However, it is of interest in this grouping of “fringe benefits,1 * so again a single case will be included for illustration. Good attendance may well be interpreted to be a part of merit. Thus an employee who is continuously absent, for what ever reason, may not be considered deserving of a merit increase. In a case illustrating this, the arbitrator stated: It must be recognized that absence of an employee is upsetting to the production schedules of the com pany, regardless of the cause of the absence. Thus the company is justified in.saying that an employee with some physical ailment which causes recurrent absence-from work should, not be paid as high a rate on merit as an employee who is just as capable but is also a regular worker. Ability may be equal, but responsibility is unequal.L39 VII. SECTION E. SUMMARY OF SECTION ON ABSENTEEISM 1; Introduction A substantial number of arbitration decisions concern Pullman-Standard Car Manufacturing Company. 2 LA 513 (J. B. Courshon, October 31, 19^5)•Cf. p. 261 139 Godfrey.Conveyor Company, 3 LA 753 CD. E. Vlhiting, June 21 *, 19*6).Cf. sunra. p p . 195. 196. 266 themselves with the question of discipline for absenteeism. In this chapter we have analyzed many of the existing decisions with a view to determining what generaltrends or patterns of reasoning may be reflected by them. It is the opinion of this investigator that there are as yet an insufficient number of cases from which to draw any extensive conclusions, A few illustrations of each principle can hardly be considered .conclusive— perhaps scarcely even representative• However, it is worth-while taking tentative note of idiat is developing even within the limitations, indi cated. 2, Classification of Cases Before summarizing some of these principles, it might be well to refer again to the fact that the cases analyzed seemed to fall logically.into three general.groups• This classification was based on the issue which seemed to domi nate in each case, as follows: (A) excessive absenteeism; (B) unexcused, unreported or unauthorized absences; (C) denial of “fringe1 1 benefits as a penalty. 3. Excessive Absenteeism In connection with the first of these divisions, we found that arbitrators generally consider absences of 10 per 267 cent or more of scheduled working time as being excessive. Criteria of employee responsibility. Discipline for such abnormal absence was considered justified by the arbi trators, in degrees varying according to the circumstances of the case, because such absences: (a) have a serious adverse effect on plant efficiency and morale; (b) reflect adversely on the employee's attitude, sense of responsibility, and ability to conform to indus trial requirements; (c) when prolonged, may throw doubt on the employee * s physical (sometimes mental) qualifications for the posi tion. Criteria of management responsibility. _ However, in deciding on the propriety of the penalty imposed, arbitrators are also concerned with management’s responsibility for: (a) framing, its rules and the penalties for their infraction in such a manner that they are reasonable, workable and understandable, and. for insuring.that the rules as well as changes in the rules are well publicized and carefully administered; (b) enforcing its rules fairly, promptly, diligently, consistently, and without discrimination, as well as checking on any practices which might, in effect, be 268 altering the rules; (e) providing. ample -warnings. of violation, making sure the employee is aware of the penalties, especially for serious or repeated infractions, and enforcing these warnings strictly; (d) taking into consideration extenuating circumstances or mitigating factors, such ass the employee* s previous record from the standpoints, of, length of service, quality and quantity of production, and frequency of previous offenses of a similar nature; relative seriousness of the offense in relation to plant efficiency and morale; factors beyond the control of the employee, such as verified ill ness, temporary mechanical ..breakdowns or inaccessibility of transportation or communication facilities; (e) considering its own possible role in the lowering of morale through poor facilities,.changed conditions, unsatisfactory personnel policies, et cetera, as these may be affecting the absentee rate; (f) recognizing the necessity for aligning its policies with those generally prevailing in the industry, or com munity as a whole; (g) avoiding the extraneous introduction of the charge of "excessive absenteeism as an issue where it is not war ranted, and making sure that it is included in.the company grievance if it is the main complaint* 269 b* Development of Principles within the General Criteria of Excessive Absenteeism Although the principles enunciated, by arbitrators under these criteria have already been set forth in considerable detail in this chapter, a brief recapitulation of some of the major principles might be useful in. summary* A• The two most frequently occurring principles emerg ing out of the first general consideration of the effect of excessive absenteeism on plant efficiency and. morale (point (a) under Employee Responsibility in outline above) ares (1) A plant cannot be expected to operate effi ciently or profitably without prompt and regular attend- lM) ance of its employees* (2) The determination of whether employees should report for work or not is a management function, and this prerogative cannot properly be usurped by individ ual employees who may wish to remain away or who con sider that there is insufficient work for them to do. It is not for the employee to decide unilaterally whether his services are needed at a particular time. That is for management to decide.1^1 llfQ Supra. pp. 187-1§Q. 1 U-l SuoraT pp. 188-189. 270 B. There are at least five major principles which recur within the second general consideration of absenteeism as it reflects on the employee’s attitude and sense of respon sibility toward his job (point (b) under Emnlovee Responsi bility in the outline above). These are: (1) The employee’s failure to demonstrate characteristics of courtesy (in reporting absences), of r . . e liability, veracity and regularity in attendance may indicate his inability to accept the responsibili ties and requirements of the job. Demonstration of such negative attitudes is properly subject to increas ingly severe disciplinary actions, perhaps eventually culminating in discharge, if continued. The severity of the penalty in any, particular case, will, of course, vary with the number of repetitions of the offense and 1^2 other circumstances involved. (2) Where housing, transportation, and distance problems are not remedied by the employee within a reasonable period after warnings, these are considered to be poor excuses for continued irregularity of attend ance, except under most unusual circumstances. It is expected that the employee will make the necessary adjustments to enable, him to meet his responsibility llf2 Supra, pp. 189-190 271 of prompt and regular attendance— or make demonstra- l*+3 ble efforts to this end* (3) Outside work and extra-curricular interests should not be of such an extent as to interfere with the employee1s duties and the responsibilities of his regular employment* Repeated absences for such a pur pose will be considered reasonable cause for discipline, progressing in degree with the seriousness and repeti- tion of the offense* (^) Since _it is generally .unusual for illness to recur with regularity on the same day of each week or period (such as the day after pay-day or the. first and last work-days of the week), absences allegedly due to such fortuitously occurring illness will not customarily be accepted as a valid excuse unless supported by sub- l*+5 stantial. and verifiable medical evidence• (5) Where regularly-spaced absences are not a factor, however, illness may be accepted as a mitigat ing circumstance, if supported by a bona fide doctor*s certificate* Ordinarily, a doctor* s certificate will i not be questioned unless it is vague, undated, or Supra* pp. 191-192• Supra, pp. 190-191. Supra, p. 192. fails to hold up under the cross-examination of a hearing. Of course, if the doctor is willing.to tes tify in person or over the phone, such testimony may do much_to counteract an employer's doubt about the veracity of a particular, medical statement, fibwever, if the employee*s general record indicates irresponsi bility, indifference, or frequent claims of unrelated illness, he may have, difficulty establishing hi s claim • Conversely, a prior good record may help to support a claim of illness, even though there may be little veri ly fication. C • Within the third general consideration of Employee Responsibility« namely the relationship between prolonged absences and the employee1s physical Cor mental) qualifica tions for the job, (point (c) under outlined criteria above), there are at least three principles that emerge as significant. These may be stated as follows: (1) The employee*s physical or mental condition must not be such as to render him unfit for efficient work, at his regular job, as might.be the case if the employee suffered from some chronic condition which lk6 Supra, pp. 193-19V 273 causes him to remain out for lengthy periods or makes his attendance very irregular* Exceptions may be where the employee*s condition has been remedied prior to the 1*f7 disciplinary action or the prognosis for future improvement in attendance is favorable due to some change in thesituation* In either of these latter situations, the employer is expected to give the employee the benefit of the doubt and a further opportunity to prove his ability and dependability. (2) However, if medical advice indicates that the employee has the physical qualifications for a different or restricted kind of employment and such employment is available, the employer is expected to provide the option of reassignment to the other 3ob. This would apply, of course, only to regular employees who have some status with the company* Especially is this true if the employee*s disability arose from or was aggravated by 1L.8 the requirements of his regular job* (3) If no official company action has been taken as to an employee*s resignationor termination, he is considered to have retained his job status, even though absent on a prolonged illness, and even if a replacement llf7 Supra. pp. 195-19.7 11+8 SuoraT p. 197.-198. 27^ has been made, (This..principle.mayhave limited applicability and be subject to varying interpretations. Certainly, it is quite dependent on the circumstances ^ ih-Q of each particular case). D. Under the second major set of criteria, those connected with Management1 s Responsibility, a number of over all principles also appear to be emerging. The first, four divisions under this general heading (a, b, c, d in the outline) may be considered to fall within the concept of corrective discipline, which involves proper framing of rules and penalties, fair-enforcement of rules, ample warning and unvarying enforcement of warning, considera tion of extenuating and mitigating circumstances. From this concept numerous principles have developed, some of which are fairly evident from the criteria themselves. However, there are some additional ones worth-.noting, here. These ares (1) The substantive fact of reasonable warning is accepted, even where the warning was oral, if-it can be established by competent testimony. Onlywhere the contract, plant_ practice, or agreement between the 1^0 parties requires written warnings are these necessary. 1^9 ., Sunra. pp. 198-199. 1^° Supra, pp. 202-203. 275 (2) Only those absences subsequent to the related warning should properly be considered for purposes of discipline in order to permit the employee opportunity 151 to improve his record, (3) Pinal warnings must be enforced. If a company fails to do so, and employees are thereby “lulled into a false sense of security," • 'this. will be considered as 152 an extenuating factor by arbitrators. (*f) Changes in plant rules may not be applied retroactively to prior warnings in the employee*s record, since this deprives employees of rights which 153 were firmly established. (5) Perhaps one other principle under this major heading of Management Responsibility will, suffice to conclude the discussion of principles emerging in matters of excessive absenteeism. This refers to introducing the charge of excessive absenteeism where it does not belong. Failure to include excessive absenteeism as grounds for discharge may preclude its introduction before the arbitrator even though valid grounds for discharge on this basis.exist. However, Supra. p. 201. 1'*2 Sunra. pp. 203-205* SupraT pp. 205-206. •where an employee has had an opportunity to defend him self against such a charge even as late as the last step in the grievance procedure, it will he accepted as a valid charge* 5* Notification and Permission The second major subdivision of cases in this chapter is concerned with the employee*s obligation to notify the company, and to secure permission or authorization for absence* Since absences of this kind are not necessarily excessive, but may be single instances or relatively infrequent occurrences, the important _ criteria are qualitative rather than quantita tive* Many contract clauses and plant .rules.are quite specific in setting forth the employees1s duty to report, secure per mission, or obtain authorization.for contemplated.absences* In view of these rather rigid, previously-agreed upon require ments, arbitrators may be quite limited in the extent to which 4 they can.modify or reverse a disciplinary action even though extenuating factors may exist* The same general. . . considerations or erit eria „as. . . in exces sive absenteeism mav be said to certain outside of the limits of such rules or contract clauses. Just as we found in the discussion of excessive absentee ism, that responsibilities, were bi-lateral, we found them to be 277 equally so within this subdivision. Some representative prin ciples which have been discerned in connection with Bm-nl ovfle Responsibility are as follows: (1) Management, having the responsibility for produc tion, has the right to deny requested leaves of absence, and employees are expected to abide by decisions of management in this regard, except when the reasons for not doing so are most compelling. Failure to comply with management's deter mination in such matters is tantamount to insubordination, and deserves treatment as such. However, there is a considerable area of difference in arbitrators1 opinions as to what is a compelling reason for disregarding management1s denial of leave. (2) The obligation is upon the employee to utilize the grievance procedure against what he considers to be an arbi trary refusal of management, for leave requested. The employee may not properly determine unilaterally to ignore management1 s 155 refusal because such refusal is believed to be arbitrary. (3) Similarly, an employee who disregards management’s instruction to report for work on overtime days is properly subject to discipline for encroaching upon management preroga tives • However, if management has been arbitrary, thoughtless 1^f Supra, pp. 212, 223-225, 232-233, 228. ^55 Supra, pp. 22M—^25* in considering the needs of the employee, or careless in acquainting the employee with the penalties for failure to report for scheduled overtime work, disciplinary action may 156 not be sustained by an arbitrator* (*+) If a bona fide effort to notify management of an absence can be established by the employee, and his past repu tation and record is good, it is expected that leniency will be shown by the employer. However, if the contract calls for securing permission in addition to giving notice, principles 157 of equity probably will not have much weight. (5) Illness may be more readily accepted as valid basis for absence when the issue of excessive absence does not enter as a factor. Likewise, the difficulties of communication and transportation may be looked upon with more tolerance, since tab- 158 senoe is an infrequent occurrence. As to Management * s Responsibility, the principles which are encountered most frequently, ares (1) The company's past practice in accepting illness as a reasonable excuse or good cause for absence may constitute a precedent and serve to prevent the company from refusing to 159 accept it at another time. 156 Sunra. pp. 231-232. 1^7 Supra. pp. 220-221, 233-235* Supra, pp. 221-222. 159 Supraf pp. 239, 221-222, ff. 279 (2) The company practice of accepting a notification procedure which varies from the regular company-promulgated rule may also serve to prevent.the company from refusing to 160 accept notification under the altered procedure* (3) The employee should not he required to suffer for the negligence, carelessness, or inefficiency of the employer's office staff in failing to note a report of absence.161 (b) The employer is expected to give considerable weight to reasonable effort and honest mistake on the part of 162 the employee in notifying management of intended absences* (5? ) Extenuating factors play an important part when discharge for unexcused, unreported, or unauthorised absence would result in forfeiture of valuable accrued benefits, such 163 , as retirement, vacation pay, or bonus. (Such extenuating factors already have been listed in detail in this summary under excessive absenteeism)*16^ (6) The discinlining of employees for unexcused or unreported absences must be related to the violation rather than to the requirements of production schedules 160 Supra, p. 238. 161 Supra* p. 235. 162 Supra, pp. 222, 237* l6^ Supra, pp. 221-222, 237• see outline on Criteria of Management Responsibil ity, supra, pp. 267-268. l6^ Supra, p. 269*41. 280 (7) However, permission for leave may be varied in accordance with the needs of production schedules, and employees who disregard this requirement are considered to 1 £L/L be insubordinate, (8) If the Company permits oral notice and permission, it must be prepared to prove that no notice was given or per- 167 mission received in the event that the matter is disputed. (9) Equality of treatment for the same offense is absolutely essential or it will make for injustices. However, this applies where the employee*s record is substantially the same as those of others guilty of the violation. Difference of treatment may be justified if the employee’s record is substantially better or worse than that of the other viola- 168 tors • (10) Supervisors must not minimize the penalties to be expected for a particular offense, since such a practice may cause an employee to risk the violation on the basis of an expected lighter penalty than is eventually meted out. How ever, an arbitrator will not condone an outright gamble on > the part of the employee when he has been adequately warned 169 that an unauthorized absence may re suit in a heavy penalty. 188 SunraT p. 2*+l. Supra, pp. 237-238. 168 Supra, PP* 227-231, 2**0r41. Supra, pp. 226-227. 281 6. Denial of Benefits The last subdivision of this chapter was concerned with cases involving denial of “fringe1 1 benefits as a penalty for absenteeism. In connection with holidays, interpretation is usually quite literal since the limitations are so much a part of the principle of holiday pay. Pay Is usually denied if the employee does not meet all the requirements specified in the contract or plant rule with respect to this matter. The most frequent of such requirements is that the employee must work the day prior to and the day following the holiday in question. If the contract is quite specific, extenuating factors, such as illness, breakdown in transportation, bad weather, et cetera, 170 have little weight. However, where the contract provision makes allowance for certain types of authorized absences, or- “just cause,1 1 arbitrators often hold that the employee is eligible to receive holiday pay, on the theory that holiday pay is not a gratuity, but an earned right of which, the employee 171 may not be deprived If the absence is for compelling.reasons. Past practice, again, will tend to be determining in modification of a particular rule or contract clause. This works both ways, and may estop the union just as much as the SupraT p. 2) +l K45 SupraT pp. 2Mf-2feO’ . 282 172 employer. In connection with benefits for premium pay days sur rounding a holiday, the major .consideration seems to be that it is management's prerogative to determine whether the work ing force must report for work on overtime days, unless the contract specifies the contrary* If employees fail to report for work on premium pay days that precede or follow a holiday, 173 they properly may be disciplined by losing their holiday pay. As to the subject of denial of vacation pay, it Is fairly well established that vacations with pay are an earned right rather than a gratuity granted by the employer. Conse quently an employee is entitled to his earned pro-rated vaca tion pay even If he Is discharged or resigns voluntarily. The major eligibility qualifications relate to the employee * s continuous service during a given period preceding the taking of the vacation. Mhere the employee is absent without per mission from the company, and the contract requires continuous or active service, he may forfeit a portion of his vacation 17k pay* However, if the company had granted permission, this probably would not be considered by an arbitrator to be a break in continuous service. There are a number of variations 1?2 Supra* pp. 254!-256. 173 Supra, pp. 250-25&* 17lf Supra. pp. 256-258. 283 17? of the same principle, hut the reasoning is similar. Overtime pay is conditioned upon attendance during the entire work week preceding the overtime day. Thus any absences occurring during-the straight-time days may affect the employee*s claim to receive premium pay for the sixth or seventh day of the work week* This is considered a reasonable form of dis- 176 cipline for absenteeism. However, it is expected that absences for just cause will be given consideration and be dis- 177 tinguished from deliberate absenteeism or invalid excuse. In connection with bonuses and merit increases, the principles are substantially the same. Prompt and regular attendance are considered to be a part of merit which would 178 entitle employees to merit increases or bonuses. The infer ence appears to be that where ability may be equal, respon sibility may determine the difference between whether or not the employee is entitled to receive a merit increase or bonus payment. It should be noted that the classification set forth and the principles derived are, of necessity, subjective and per haps artificial. In any study of this kind the classification SupraT pp. 256-258. Supra T pp. 258-259* Supra, pp. 260-262. Supra T pp. 263-26^. of particular issues is difficult, to determine exactly. There is inevitable overlapping; and it Is to be expected that some errors may appear, especially in borderline cases. Part of the difficulty involved in the analysis stems from the fact that the interpretation given to the general phrases appearing in contracts is highly.subjective, and will vary widely even among the most experienced arbitrators. The.investigator has not presumed to pass Judgment on the facts and reasoning of any decision or award; nor are there any pretensions to finality. The intent has been solely to determine the nature of the principles evolving and some of the more evident trends. Therefore, whatever has been determined as the result of the approach selected should be looked upon merely as an approxi mate statement of these trends. CHAPTER X SUMMARY AND CONCLUSIONS The initial hypothesis of this study was that through the solution of day-to-day collective bargaining problems there is emerging a system^ of industrial jurisprudence. Our inquiry was directed toward determining the role which develop ing arbitration principles play in this industrial jurispru dence. We have found that the.role is a significant one, because the decisions of arbitrators provide tangible articu lation of the rules, practices, and policies which have become accepted modes of conduct in industrial relations. Equally important, the arbitrator exercises an. accelerating influence on the customs and modes of behavior of the parties. The objective approach of impartial arbitration serves as a catalyzer to assist in the dissolution of divergent views and partisan attitudes toward particular issues. This permits coherent principles to be discovered, expressed, and forwarded. In effect, then, not only do arbitration decisions tend to peg down and secure the policies already evolved by the parties themselves, but they also provide the continuing impetus for advances in industrial relations techniques and thinking. In the first part of the study, we have endeavored to show where principles are utilized, whether persuasively or as precedents; to what purpose, and how effectively under several 285 286 different types of systems. We have evaluated what the possible future of precedents and principles may be in volun tary permanent and ^ hoc arbitration, the two most prevalent types of arbitration in the United States today. We have indicated the general consensus of opinion that the deliberate formation of a body of precedents in ad hoc arbitration is neither a probable prospect nor a desired goal; but that dis cernible principles with persuasive value appear to be formu lating, along with the other aspects of the industrial Juris prudence, and from the same source— the collective bargaining process. In the second part of the study, we have attempted to break ground on the determination of what , some of these prin ciples may be, their interrelationships, as well as to indi cate one possible approach to an area of research which is as yet almost untouched. A detailed summary of our findings as the result of the analysis of arbitration cases involving absenteeism is presented as Section £ of Chapter IX. There would be little point in repeating these findings here. Our study of the principal governmental experiments in arbitration has revealed that attempts to develop principles into precedents, even under what might be considered favorable conditions, failed to produce many significant results. The major reasons for the failure of these experiments to prove 287 more successful in the development of a new "common law’ * seems to be: Cl) the rigidities introduced by attempted codifica tion of principles tends to stifle the most essential requis ites of arbitration— that is, flexibility and fluidity, (2) The complexity of industrial, social, and psychological conditions apparently will not permit of the development of universal rules and principles of arbitration applicable to all situations, (3) Whenever agencies are established to develop and utilize a uniform body of common labor law, par tisan and political pressures, together with constitutional and administrative difficulties, present almost insuperable obstacles and seriously interfere with the orderly and effi cient development intended, ( * ♦ • ) General economic and politi cal conditions of the nation have a direct bearing upon the effective operation of arbitration courts and their attempts at codification. Principles that might be successfully codi fied and applied during periods of prosperity, inflation, or war-stimulated production may be totally inapplicable to con ditions of depression, declining production, and increasing unemployment. For the time-lag which prevents a national tribunal from adapting readily to changing conditions, coupled with the tendency of a court to cling to established princi ples, makes for decisions which some have described as “unrealistic” and "stereotyped” in the light of the particular current situation. This was one of the major criticisms made by Dr, Bankin in her study of the British Industrial Court, Dr. Chang, another authority on the same subject, stated that, in his opinion, the general principles enunciated by the Court have frequently, served as a cloak, and have borne no real organic relationship to the point actually made in a particular decision. When the decisions are considered by the parties to be inequitable or unworkable.under a compulsory type of arbitra tion system, the effect merely is to cause defiance or to stimulate pressures and opposition to the Court. Thus, instead of achieving its purpose of settling or preventing disputes, actu ally the Court by its rulings) may cause greater tension and unrest which will be made manifest in various adverse ways. Under a voluntary system, if the parties believe that the tribunal*s adherence to precedent is becoming over-rigid, the Court may be considered to have exhausted its usefulness. Parties will simply by-pass it entirely, resorting to other means, peaceful or forceful, for the settlement of their dis putes. In periods of great national crisis, when uninterrupted production is vital to national survival, governmental arbi tration systems can . function with a reasonable degree of suc cess. Public opinion, patriotism, the war effort, all tend to make for acceptance of and compliance with generalized principles applied, uniformly, and.nationally. Although such principles tend to exercise a profound influence for a long period after the emergency has passed and the specially- established tribunal has ceased to function, o'na y those prin ciples which are industrially and economically sound may be expected to survive with any degree of permanence. Those familiar with the workings of the National War Labor Board from 19*+2 to 19*+5 are aware of the fact that the principles which secured the widest initial and eventual acceptance were those which already were nascent in the then-current collective bargaining .picture, and for which labor and management were reasonably ready. These could be retained later without serious readjustment. The relative success of the Board in skirting some of the difficulties described for the other systems considered may perhaps also be attributed to its tri partite structure. There seems to be general agreement, how ever, that even with this feature, in normal times an agency like the Board might prove less successful. Where the problems of rigidity, complexity, and varying industrial conditions are relatively absent because of the mechanics of a particular arbitration system, such as is the case with the permanent, voluntary type of private arbitration, there is a greater possibility for successful development of arbitration principles into a system of workable.precedents. This has been amply demonstrated by the. examples cited in 290 Chapter IV of our study. Permanent systems provide an instance of operation under unvarying frames of reference, namely, the same contract, the same parties, the same, arbitrator, and the same set of industrial conditions. The only major variation occurs in the facts and circumstances of the particular case. Where cases have similarity even in this latter element, they are usually not presented to the arbitrator at all; instead reference is made to the precedent already established, Moreover, there is no problem of attempting to apply principles and precedents across industry lines, as is usually the case with the national or ad hoc systems. Counter pressures are reduced to a minimum, because the parties have set up their own system,* ; and it is to their interest to have their self-devised arrangement function effectively and effi ciently, The permanent system may also be much more responsive to changes in economic conditions, for it provides a well- integrated machinery to cope with such changes. Some permanent arbitration systems, such as those prevailingin the automobile industry, permit the arbitrator but limited scope in his func tions. However, the arbitration systems of the hosiery and clothing industries, to take but two, have shown considerable success over several decades in dealing with the shifting economic problems of their industries. The wide latitude that is permitted the impartial chairmen in these latter industries illustrates the successful operation of arbitration as an 291 organic branch of collective bargaining* Principles and pre cedents developed within so favorable an environment have much more survival value and efficacy; for, in such cases, the arbi trator is almost accepted, as a third party to the agreement* This is logical and right* For at least two reasons, arbitration is indeed an integral element of the collective bargaining agreement. In the first place, the contract itself can provide no more than a skeleton outline of the rules and regulations by which the parties intend to govern their rela tions during the life of the document* It is merely a frame work because no contract can.avoid entirely the use of general, vague, or even ambiguous language to express the intentions of its negotiators. Thus, it is inevitable that questions of interpretation will arise during the period of the agreement, and the resolution of these differences of construction require as much collective bargaining and. good faith as do the initial negotiation and drafting of the contract. When a deadlock ensues, the parties resort to the means which they have specifi cally provided for the peaceful resolution of such controversies, namely, arbitration. In the second place, even.if the contract could be written clearly and without ambiguities, it is virtually impossible to anticipate and provide for all future conditions which may arise in the dynamic process of collective bargaining during the brief life of a contract. Therefore, the arbitration 292 procedure is also provided for this purpose— to permit readapt- ing, reapplying and reinterpretation of the language of the contract to meet changing conditions as necessary. In this sense, at least the arbitrator's function may become as much legislative as judicial. Certainly, from the standpoint of the losing.party, the arbitrator's decision may constitute an amendment to or modification of the contract. When we came to the_consideration - of ad hoc arbitration, we found the same diversity in relationships, industrial condi tions, contract provisions and parties which created the major difficulties in the way of the development of precedents under the national systems. And there would seem to be far less opportunity for precedents to develop under the temporary, private systems of arbitration, since they lack even the tenure of office, standardized procedures, or correlated facilities which are considered advantages of the national systems. Although it was found that there are some authorities on arbitration who consider that a body of "common law" of labor may be and should be developing through the process of arbitration, the majority opinion, including that tof function ing arbitrators themselves, seems to be that such a development is neither a likely nor a practicable possibility. Some feel that no set of satisfactory principles for use as precedents can be devised or discovered. Others fear that the formaliza tion of any body of principles governing labor arbitration 293 might actually represent nothing more than "a codification of random prejudices, ultimately detrimental to the acceptability of arbitration in given cases,” However, many are in agree ment that greater stability could be attained and future indus trial problems foreseen or possibly avoided if basic principles emerging from, arbitration decisions can be systematized suffi ciently to guide the parties and to provide instruction in the procedures and questions involved. It is considered that more must be known about such principles so that equitable and practical policies of dispute settlement may be formed and forwarded. Among the influences which dispose toward this result is that of the publication of arbitration decisions in full text. With the continued publication of arbitration decisions and the refinement of the classification, indexingand method of presentation of these cases, it is probable that arbitration decisions will exert ah even greater influence in the future than they have in the past. And, in a similar measure, the principles which are developing with&utbem will have wider applicability and usefulness. Arbitration decisions not only summarize the particular conditions and circumstances of each case and the claims of the disputants, but also reveal the basic reasons whieh led the arbitrator to his final decision. The extent and coverage of the principles set forth in the arbitrator's opinion serve 29b to indicate the potentialities of their application to future cases* Surveys and analyses of arbitration decisions through the continued efforts of future research students therefore can be of value in many ways* (1) There is interest in criteria which may aid in the prevention of future differences on,similar issues. As Justin has so well stated, arbitration decisions indicate to some extent the area of "probable expectancy,” within which the disputed issue will be settled by the parties themselves or determined by an arbitrator. (2) Analyzed decisions can provide a valuable educa- v tional source of information for those representatives of management and labor who wish enlightenment, guidance, direc tion, and instruction in all phases of the collective bargain ing process, namelys the negotiation and drafting of substan tive provisions of the labor agreement; the adjustment of grievances and resolution of differences of interpretation; the preparation, presentation, and proving of a case in arbi tration. (3) Decisions so analyzed may serve to caution the parties against drafting ambiguities into their contract clauses,to point out the interrelation, of clauses to each other, the commonly accepted meanings, and the differences of application of the various terms; also to provide data on 295 prevailing rates and conditions of employment, comparative bene fits, and treatment of disputed matters. They may be especially useful in guiding employers and unions who have only recently been introduced to the collective bargaining process on tech niques of the orderly processing of disputes. Analysis of arbitration decisions serves to highlight the major subjects of disputes and the great variety of condi tions and circumstances which differentiate them. It can bring forward for critical analysis and evaluation the various prin ciples formulated or relied upon by arbitrators. Comparison and contrast of arbitral approach, as well as the interrelation ships of principles to one another can be made evident. This has been our purpose in the second part of the present study. We have sought to make a beginning in the determination of the formulating principles and to find out, even though tentatively, just what is developing* For the principles developing out of j|d hoc arbitration, although not regarded kindly as precedents which could form the basis for a new "common law," do play an important role beyond their immediate purpose of settling a particular dispute. They not only articulate the rules, practices, and policies which have become accepted modes of behavior in industrial relations; but also, by virtue of their persuasive influence, they provide an educative and stabilizing effect on industrial relations, assisting in the setting up of standards for the conduct and responsibility of the parties, as well as supplying objectives toward which to strive for improved relations. Thus, they are a vital element in the emerging. “industrial jurisprudence • “ BIBLIOGRAPHY SELECTED BIBLIOGRAPHY A. BOOKS AND PAMPHLETS Allen, Carleton Kemp, Law in the Making. 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New York: American Council Institute of Pacific Relations, 19*+3« *+8 pp. Selekman, Benjamin M., LaborRelations and Human Relations. New York: McGraw-Hill Book Company, Inc., 19*+7. 25*? pp. Slichter, Sumner H.T The Challenge of Industrial Relations. Ithaca, New York: Cornell University Press, 19^-7• 198 pp. ______, Union Policies and Industrial Management. Publication No. 85j Washington, D. C. : The Brookings Institution, 19^1* 597 PP. Smith. Leonard J.. Collective Bargaining. New York: Prentice- Hall, Inc., 19^. "5?F"^. ______, Manual for Labor Piscutes. New York: Prentice-Hall, Inc. , 19^. £l pp. Soule, George, Wage Arbitration. New York: The Macmillan Company, l92o. 297 pp. Spencer, William H., The National Railroad Adjustment.Board. Chicago: University of Chicago Press, 1938. 6 5 pp. Starns, George T., John R. McCutcheon, and-James M. Stepp, 4 Survey of the Methods for the Promotion of Industrial Peace. A report submitted to the Labor Relations Commis sion of Virginia; Charlottesville, Virginia: Division of Publications of the Bureau of Public Administration, 1939. l*+6 pp. Stein, Emanuel and Jerome Davis, editors, et al.t Labor Prob lems in America. New York: Farrar & Rinehart, Inc., 19V6. 909 pp. 302 Taylor, Albion Guilford. Labor Problems and Labor Lav. New York: Prentice-Hall, Inc., 19^+* 663 pp. Taylor, George William. Significant Post-War Changes in the Full-Fashioned Hosiery Industry. Philadelphias University of Pennsylvania Press, 1929* 130 pp. Teller, Ludwig, 4 Labor Policy for America: A National Labor Code. New York: Baker, Voorhis & Co., Inc., 19^+5• 33**PP* . The Law Governing Labor Disputes and-Collective Bar gaining. New York: Baker, Voorhis & Company, Inc. ,1940. 3 Vols. . Management Functions Under Collective Bargaining. New York: Baker, Voorhis & Co., Inc., 1947* w B pp. Twentieth Century Fund, Labor Committee, Harry A. 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Leiserson, William M., Lee H. Hill, and Sherman H. Dalrymple, American Labor Policies. proceedings of a conference. New Wilmington, Pennsylvania: Economic and Business Foun dation, March 8, 19*4-5. 50 pp. (Leiserson* s statement entitled; “A Government Labor Relations Policy," pp. 3- 10) . . “Labor Past as Key to Labor Future,” address delivered before the Athenaeum, Summit, New Jersey, February 10, 19* 4* 4 - , Labor Relations Reference Manual. Vol. I**-; Washington, D. C.s The Bureau of National Affairs, Inc., 19*4-5, pp. 265* 4 — 26 63. . “Recipe for Dispute Settlement," Labor Relations Refer ence Manual. Vol. 17; Washington, D. 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Seward) McDevitt, James L., "Labor Speaks for Arbitration," Report on an address before the Pennsylvania Bar Association, Atlantic City, New Jersey, June 21, 1944, ArbitrationT American Arbitration Association, New York, Vol. 2, Nos. 7-8, July-August, 1944, pp. 14-15. "More Disputants Turning to Arbitration," Labor Information Bulletin. U. S. Department of Labor, Vol. 14, No. 3, March, 1947, p* 5. Morse, Wayne L., "The Scope of Arbitration in Labor Disputes," Papers Presented at the Fourth Annual Stanford Industrial Relations Conference. March 24 to 28T 19*fl.Palo Alto: Division of Industrial Relations, Graduate School of Busi ness, Stanford University, 1941, pp. 110-130. . "War Labor Board as a Judicial Agency," Address before the International Juridical Association, New York City, March 21, 1942. Labor Relations Reference ManUalf Vol. 10; Washington, D. C.: The Bureau of National Affairs, Inc., 1943, pp* 1277-1279* Owen, W. V., "What Is the Place of Arbitrators in Labor Dis putes?" Industrial Relations. Dartnell Corporation, Chicago. Vol. 5, No. o, December, 1947, pp. 17-20* Peterson, Florence, "Adjustment of Labor Disputes," reprint from the Monthly Labor Review. November, 1939- Serial No. R. 1026. 22 pp. "Precedent Value of Arbitration Awards," Labor Relations Reporter. The Bureau of National Affairs, Inc., Washington, D. C., Vol. 20, No. 35, September 1, 1947, pp. 286-287. (Report on recommendations of the Rail Emergency Board). Purves, Dale, "Management Speaks for Arbitration," Report on an address before the National Paper Box Manufacturers' Convention, Chicago, May 22, 1944, Arbitration. American Arbitration Association, Vol. 2, Nos. 7-8, July-August, 1944, pp. 12-13. 310 Roberts, R. Lloyd, “Conciliation and Arbitration,” portion of an Address delivered at the Seventh International Manage ment Congress, Washington, D. C. Labor Relations Reference Manual. Vol. 3; Washington, B. C.: The Bureau of National Affairs, Inc., 1939, pp. 952-959. “Report of President's Commission to Great Britain.'1 Labor Relations Reference Manual. Vol. 3: Washington, I). C.: The Bureau of National Affairs, Inc., 1939, pp. 925-951. Rosanshine, Albert H., “Problems of Arbitration," Papers Pre sented at the Second Annual Stanford Industrial Relations ConferenceT March 27 to 31. 1939. Palo Alto, Californias Stanford University, Division of Industrial Relations, Graduate School of Business, 1939, pp. 196-205* Roth, Almon E., Van A. Bittner, Lloyd K. Garrison and Elmo Roper, "Toward a National Labor Policy." Personnel. Series No. 72, 19^3* **7 pp. New Yorks American Management Association, 19^3. Papers presented at Manpower Stabiliza tion Conference of the American Management Association, New York, September 19^3• "Senator Wayne Morse on Compulsory Arbitration," The Arbitra tion Journal. American Arbitration Association. New York, Vol. 1, New Series, No. 1, Spring, 19^6, pp. 72-7*+. "Seven States Require Arbitration in Utilities; New Special Acts Passed by Ten Legislatures," Labor Information Bulle tin. U. S. Department of Labor, Vol. 1M-, No. b, August, 19^7, PP. 6-7. Shulman, Harry, "Arbitration in Labor Disputes," Addresses on Industrial.Relations, 19^6. Ann Arbor, Michigan: Univer sity of Michigan. . “The Role of the Impartial Umpire," The Collective Bargaining Agreement in Action. Personnel Series No. 82; New Yorks American Management Association, 19^, pp. 6- 11. (Paper presented at a Special Collective Bargaining Conference of the American Management Association, New York, May 2*f, 19^+. Slichter, Sumner H., "The Contents of Collective Agreements,“ Society for the Advancement of Management Journal, January, 1938, PP. 13-20. Steelman, John R., "Arbitration of Labor Disputes: Value and Limitations of Arbitration." Labor Relations Reference Manual. Vol. 2; Washington, D. C.: The Bureau of National Affairs, Inc., 1939, pp. 1065-1068. 311 r Taylor, George W., Address, (rio title) before the American Management Association,. New York, April 11, 19^5* (National War Labor Board mimeographed release B-20¥f). T "The. Arbitration of Labor Disputes,” The Arbitration Journal. American Arbitration Association, New York, Vol. 1, New Series, No. V, Winter., 19^6, pp. i f09-1 +lH-. ______, ”The Function of Collective Bargaining." Management1s Stake in Collective Bargaining.. Personnel Series No. 815 New Yorks American Management Association, 19^, pp* 3-19* (One of four papers presented at the Special Collective Bargaining Conference’ of the American.Management. Associa tion, held in New York City, May 21 * - , 19^)* ______, “The Role of Organized Labor in Winning the War," Address before the Annual Convention of the Pennsylvania Federation of LaborT Town Hall, Scranton, Pennsylvania, May 5, 19*+2. (National War Labor Board mimeographed release B-53)• . "Toward a National War Labor Policy," Address before the 26th Annual Meeting, National Industrial Conference Board. May 20 , 19^2. (National War Labor Board mimeographed Release B-67)• 9 PP* ' "Voluntarism in War-time Labor Relations," The General Magazine and Historical Chronicle. University of Pennsylvania, Vol.ifo, No. 3, Spring, 19*+6, pp. l1 +5-l51 ** Taylor, John W., "Reporting of Labor Arbitration Pro and Con; For Full Reporting," The Arbitration.JournalT American Arbitration Association, New York, Vol. I, New Series, No. *+, Winter, 19*+6, pp* ^20-^28. > Tqller, Ludwig, "Requirements of a National Labor Policy," The Annals of the American Academy of Political, and Social Science, Vol. 2*+8, November, 19^6, pp. 173-18^-. Tiffin, Joseph and C. H. Lawshe, Jr., "War Labor Board Decision Trends," reprint from Personnel. Vol. 22, No. 2; New Yorks American Management Association, 19^5* 7 PP* "Tighter Discipline for More Output5” Modern Industry, Vol. 15, No. 2, February 15, 19^8, pp. w-V?. Werne, Benjamin, "War Labor Board Looms as Labor Supreme Court," Arbitration Journal, American Arbitration Association, New York, Vol. 6, Nos. 2-3, Spring-Summer, 19^2, pp. 130- 135* 312 "What Kind of Persuasion, The Case for Arbitration," reprint from Modem Industry. March 15, 19**6.' Hew York: American Arbitration Association, n.d. "WLB Settled Disputes and Helped. Stabilize." Labor Information Bulletin. U. S. Department of Labor, Vol. I1 *, Ho. 2 February, 19^7, pp. 7-8. Yagoda, Louis, ‘ ♦Labor Arbitration Is Big Business,” review of t two books on labor arbitration, reprint from Labor & Hation. ' Hew York: Inter-Union Institute, Inc., September-October, 19^7. D. ENCYCLOPEDIA ARTICLES “Arbitration of Disputes.” Encyclopedia of Labor Relations. Los Angeles: Labor Relations Associates, Inc., 19*+^. Section 15. “Arbitration, Industrial," Encyclopedia of the Social Sciences. Vol. 2; Hew York: The Macmillan Company, 1930, pp. 153- 157. “Courts, Industrial," Encyclopedia of the Social Sciences. Vol. pp. 535-53^ E. LABOR ARBITRATION SERVICES American Labor Arbitration Awards. Labor Equipment; Hew York: Prentice-Hall, Inc., current service, looseleaf. (Also appears as a bound volume; Vol. 1 issued 19^6). Collective Bargaining Negotiations and Contracts. Washington, D. C.: The Bureau of National Affairs, Inc., current looseleaf service. Employee Relations and Arbitration Report. Hew York: Prentice Hall. Inc., bi-weekly, looseleaf supplements to Labor Arbitration. Key to Labor Arbitration Reports, covering Vols. 1-8, includ ing Directory of Arbitrators; Washington, D. C.: The Bureau of National Affairs, Inc., 19**8. Vol. 9, No. 3 8, Supplement Labor Relations Reporter. 313 Labor Arbitration.. . Including Mediation and_Conciliation. Labor Equipment, Vol. 5, Section 60,000to 65,000; New York: Prentice-Hall, Inc., current looseleaf service* Labor Arbitration Reports: Dispute Settlements. 9 vols.; Washington, D* C.: The Bureau of National-Affairs, Inc. (volumes regularly added). Labor Coordinator. Hew Yorks Research Institute of America, Adjustment of Disputes, J-15,000; Management Prerogatives, J-18.000; Settlement Machinery, K-100. (current looseleaf service). Labor Law Course* Chicago: Commerce Clearing House, Inc., looseleaf for current additions. Labor Law Reporter. Chicago: Commerce Clearing House, Inc*, current looseleaf service. Labor Relations Reference Manual. Washington: The Bureau of National Affairs, Inc., 20 vols* (volumes regularly added). Labor Relations Reporter. Washington, B. C.s The Bureau of National Affairs, Inc.. weekly looseleaf. (Eventually are reprinted in Labor Arbitration and Disputes Settlement. and Labor Relations Reference Manual. The two sections of interest to this study are Labor Arbitration and Disputes Settlements: Lahor-Management Relations: News and Back ground Information)• Prentice-Hall Labor Course. 19*f8. New York: Prentice-Hall, Inc., I9*f7, looseleaf ror insertion of current material as it appears. F. BIBLIOGRAPHIES Bibliography on Labor-Management Arbitration. J£lW-12i±6. Tentative Draft of Bibliography to be Published: New York: American Arbitration Association, February 20, 19*+7• (mimeographed)• 15 pp« Compulsory Arbitration of Labor Disputes: A List of Recent References. Washington, D. C.: The Library of Congress, General Reference and Bibliographical Division, January 13, 19*+8. (mimeographed). 5 PP* 31*+ Conciliation. . and Arbitration,in Industrial Disputes: A Selected List of References. Washington,.. D. C.: U. S. Department of Labor Library. Government Mediation and Arbitration_of Labor Disputes. Selected Reference's No. 6. Princeton, New Jersey: Industrial Rela tions Section, Princeton University, November, 19*+5* ** pp. Index to Labor Articles. New York: Ran<L School of Social Sciences. Issued currently. The Industrial Relations Five-Foot Shelf T by Herman G. Heneman, Jr., Bulletin 5> Minneapolis, Minnesota: University of Minnesota Press, September, 191 *-?* 18 pp. The Office Library of an Industrial Relations ExecutiveT 19*+6. 5th edition; Princeton, New Jersey: Industrial Relations Section, Princeton University, March, 19**6. 35 PP* Recent Literature on Collective Bargaining. compiled by Laura A. Thompson. Washington, D. C.: U. S* Department of Labor Library, n.d. (mimeographed). 9 PP* President's National Labor-Management Conference. Selected B£bli2££aite m Co.Ue^ti-Ye fimffldflLOK* Document 62 G/21; Washington, D. C.: processed, November 15, 191 +5* 12 pp. Selected Bibliography on Compulsory Arbitration of Labor. Disputes. Washington, D. C.: U. S. Bureau of Labor Statistics, Industrial Relations Branch, September, 19^7* Processed. 7 PP* 4 Trade Union Library. Bibliographical Series No. 70; Princeton, New Jersey: Industrial Relations Section, Princeton Univer sity, 19^3* **2 pp. G. MISCELLANEOUS Arbitration Speaks for Itself. New York: American Arbitration Association, n.d. (mimeographed)• 15 pp* Compulsory Arbitration. New York: National Association of Manufacturers, n.d. (mimeographed). 30 PP* Harris, Arthur, Government Mediation and Arbitration in Indus- trial Disputes. 1939 Legislative Problems No. 10; Berkeley: University of California, Bureau of Public Administration, 1939* 25 pp. 315 Shaw, Edward P., “Arbitration as a Means of Settling Labor Disputes.” Unpublished Master’s thesis, Agricultural and Mechanical College^of Texas, San Antonio, Texas, 19^7• Three Years of Arbitrating Labor Disputes. New York: American Arbitration Association, n.d. (mimeographed). 11 pp. V APPENDICES APPENDIX A 1. Arbitration Questionnaire. 2* List of Arbitrators Who Were Interviewed or to Whom Questionnaires Were Sent i ARBITRATION QUESTIONNAIRE This questionnaire is devised for the purpose of ascer taining to what extent, if any, a precedent trend may he emerging from the day-to-day arbitration decisions that have been handed down within recent years. The investigator is conducting the study without pre conceived opinions on whether reoccurring patterns of arbitral reasoning do take place, and hopes to discover the facts as they are, welcoming negative as well as positive responses. Your opinion will not be quoted individually under your name, but will appear as, part of a general tabulation and discussion. All of the questions appearing in. the questionnaire have reference only to arbitrations involving INTERPRETATIONS OF EXISTING CONTRACTS, and not to arbitrations involving the setting of new terms or conditions. Also reference is wholly to the reasoning and decisions within arbitration cases, rather than to procedural matters. Instructionss Please check nYes" or No0 where indicated. Otherwise, and in addition, answer the questions as fully as you can on the opposite page. However, if time is a factor, even brief replies will be appreciated. Feel free to use additional sheets if necessary. 1. In the process of deciding an arbitration case, do you consult decisions of other arbitrators on similar matters? Yes ( ) No ( ) 2, If your answer to question 1 is nyes,M what are your reasons for consulting other arbitration cases? 3* Do you use any of the following reference services for this purpose: (Please check one or more) a. Bureau of National Affairs. b. Commerce Clearing House. c. Prentice-Hall. d. Research Institute of America. I! Others^0312) Indicate which g. None 318 If. 5. 6. 7. 8. 9. 10. 11. 319 Is there a particular reason for your choice? To what extent have you found the parties to an arbitra tion ease citing previous decisions to support their argu ments? Rarely , Occasionally _____ Frequently In deciding arbitration cases, xvhat weight do you give to arbitration decisions cited by the parties: Little, if any, weight _____ Some weight Considerable weight Are you in favor of the publication of arbitration decisions? a. In full text. b. In summary or digest form. c. Not at all. Why?______________________________ . __________ -________ With regard to arbitration decisions, do you think that a body of standards or guiding principles is developing spontaneously? Yes ( ) No ( ) In your opinion, what are the obstacles in the way of such a development? Do you personally favor or oppose the codifying of such standards or guiding principles? Please state your reasons in either case. If you favor such a development, how, and by whom would you propose that it be initiated or forwarded. Are you familiar with any articles or studies undertaking an analysis of the question under consideration here (whether completed or in process)? If so, please indicate where these may be consulted. LIST OF ARBITRATORS WHO WERE) INTERVIEWED SO WHOM QUESTIONNAIRES MERE SENT Benjamin Aaron 6367 Wilshire Boulevard Los Angeles 3 6, California Paul Abelson 3*f7 Fifth Avenue New York, New York Joseph Brandschain 2015 Philadelphia Saving Fund Bldg* Philadelphia 7, Pennsylvania Leo C. Brown 367^ Lindell Boulevard St. Louis 8, Missouri Alfred A. Colby Chandler Building Washington 5, D. C. David L. Cole *+5 Church Street Paterson, New Jersey Albert I. Cornsweet 3620 Tolland Road Cleveland 22, Ohio George Allan Dash, Jr. 1111 Lewis Tower 225 South 15th Street Philadelphia 2, Pennsylvania Paul A. Dodd University of California Losr Angeles, California I. Robert Feinberg 25 West Mfth Street New York, New York Nathan P. Feinsinger Lav/ School University of Wisconsin Madison, Wisconsin Herman A. Gray 551 Fifth Avenue New York 17, New York Lawrence R. Guild University of Southern California Los Angeles, California Paul N. Guthrie University of North Carolina Chapel Hill, North Carolina Aaron Horvitz 285 Madison Avenue New York, New York Peter M. Kelliher 77 West Washington Street Chicago, Illinois Clark. Kerr University of California Berkeley, California Benjamin S. Kirsh 70 Pine Street New York, New York John A. Lapp 13^ North LaSalle Street Chicago, Illinois Philip G. Marshall 208 East Wisconsin Avenue Milwaukee, Wisconsin Whitley P. McCoy Box 1502 University, Alabama A. Howard Myers 29b Washington Street Boston, Massachusetts 320 321 LIST OF ARBITRATORS WHO HERE INTERVIEWED OR TO WHOM QUESTIONNAIRES WERE SENT (Continued) Charles A. Myers Massachusetts Institute of Technology Cambridge, Massachusetts Paul Pigors Massachusetts Institute of Technology Cambridge, Massachusetts Spencer D. Pollard University of Southern California Los Angeles, California Clifford W, Potter 6030 Mercedes Dallas, Texas H. Herman Raueh 623 North Second Street Milwaukee, Wisconsin Carl R. Schedler Litchfield, Connecticut Ralph T. Seward l*f09 Chamber of Commerce Building Pittsburgh 19, Pennsylvania I. L. Sharfman Department of Economics University of Michigan Ann Arbor, Michigan William E. Simkin 1111 Lewis Tower 225 South 15th Street Philadelphia 2, Pennsylvania George W. Taylor University of Pennsylvania Philadelphia, Pennsylvania Saul Wallen 16 Court Street Boston, Massachusetts Paul W, Walter 1215 Leader Building Cleveland 1^, Ohio Edgar L. Warren Institute of Industrial Relations University of California Los Angeles 2b, California Gordon S. Watkins University of California Los Angeles 2b, California Dudley E. Whiting 901 Michigan Bank Building Detroit 2o, Michigan Edwin E. Witte University of Wisconsin Madison 6, Wisconsin James H. Wolfe Supreme Court Chambers The Capitol Salt Lake City, Utah David A. Wolff National Bank Building Detroit 26, Michigan APPENDIX B STATISTICS ON ARBITRATION PERMANENT VERSUS AD HOC ARBITRATION1 Most arbitration agreements provide that the person or persons who are to serve as arbitrators are to be selected whenever a particular need arises. On the other hand, 5 per cent of the agreements provide for permanent arbitration machinery. Of the 91? agreements with arbitration clauses, H-3 stipulate permanent arbitration machinery and 872 ad hoc arbitration. The limited number of agreements providing per manent arbitration machinery, however, cover 28 per cent of the workers employed under arbitration agreements. PERMANENT ARBITRATION Permanent arbitration provisions occur most frequently in the agreements of the aircraft, automobile, meat-packing, and rubber industries, although they are found in some agree ments in each of the other industries considered, except petroleum. In the automobile and meat packing industries, 88 and 73 per cent, respectively, of the workers under arbitra tion clauses are covered by permanent arbitration. Although agreements with the larger plants in the above-named industries tend to have permanent arbitration clauses more commonly than do agreements with smaller plants, the proportion of workers covered by such clauses in the aircraft and rubber industries is far less than in the automobile and meat-packing industries. In the eleetrieal-machinery, basic-steel, and cotton-textile industries, none of the agreements with major plants provide for permanent arbitration. The General Motors, Ford, and Chrysler agreements establish permanent arbitration and account for the high pro portion of workers in the automobile industry and for most of the workers in the aircraft industry under permanent arbitra tion machinery. Similarly, the.high^proportion of meat-packing workers with permanent arbitration is explained by the master agreements of the Armour, Swift, and Wilson companies, which contain such provisions. The Ford and General Motors agreements contain specific 1 Monthly Labor Review. Vol. 59, No. 5 (November 19W) , pp. IQQk-imT. 323 AD HOC AND PERMANENT ARBITRATION PROVISIONS IN 915 UNION AGREEMENTS IN SELECTED INDUSTRIES All companies Majo]r companies Small companies INDUSTRY Total Ad hoc Perma nent Total Ad hoc C J RS. < D Q ) P .3 Total Ad hoc Perma nent Per cent of agreements All industries................ . 100 95 5 100 90 10 100 98 2 Aircraft, excluding parts.............. 100 80 11 100 85 i i 100 95 5 Aluminum ..................... . 100 95 5 100 9 b 6 b 6 36 100 100 — Automobiles and parts............ . 100 ? 100 100 100 . mum Chemicals, industrial. ................. 100 96 b 100 88 12 100 100 — Machinery, electrical............... 100 96 b 100 100 100 95 5 Machinery, other. Meat packing......................... 100 98 2 100 96 b 100 99 1 100 87 13 100 73 27 100 97 3 Petroleum production and refining....... 100 100 — 100 100 — 100 100 m m m m Rubber.......................... ...... 100 90 10 100 79 21 100 97 3 Steel— blast furnaces and rolling mills. 100 96 b 100 100 — 100 9ij. 6 Steel products................. ...... Textiles: 100 96 b 100 92 . 8 100 97 3 Cotton............................ 100 98 2 100 100 100 98 2 Silk and rayon........ . 100 97 3 100 S3 17 100 100 Woolen and. worsted.......... . 100 96 b 100 89 11 100 98 2 * Monthly Labor Review. Vol. 59> No. 5 (November 19^), p. 1005. AD HOC AND PERMANENT ARBITRATION PROVISIONS IN 915 UNION AGREEMENTS IN SELECTED. INDUSTRIES (Continued) A ll companies Major companies Sm all companies IN D U S T R Y T o ta l A d hoc Permanent T o ta l A d hoc d % 1 o d . T o ta l A d hoe Permanent > Per cent o f workers A ll in d u s trie s ................................. . . ................. 100 72 28 100 65 35 100 97 3 A ir c r a ft, excluding p a rt s . . . . . . . . . . . . . . . . . . 100 7B 22 100. 67 33 100 99 1 A lum inum ...................................................... 100 99 1 100 99 1 100 100 — Autom obiles and p a rts .................................. 100 12 88 100 2 91 100 100 — Chem icals, in d u s tr ia l.. . . . . . . . . . . . . . ........... 100 91 9 100 88 12 100 100 — M achinery, e le c tr ic a l....... ..... .............. .. 100 9? 5 100 100 — 100 8if 16 M achinery., o th e r................................ . Meat p a ckin g ........................................................ 100 98 2 100 97 3 100 99 1 100 27 73 100 23 77 100 97 3 Petroleum production and r e fin in g .............. 100 100 — 100. 100 mmm 100 100 ' Rubber . • • • • • • • « • • • • . ........................ 100 88 12 100 85 15 100 98 2 S te e l—b la s t furnaces a n d .ro llin g m ills . . •. 100 99 1 100 100 — 100 99 1 S te e l p ro d u cts.............................. ...................... T e x tile s : 100 98 2 100 98 2 100 98 2 C otton............................................................... .1 0 0 97 3 100 100 — 100 9 1 + 6 S ilk and ra y o n ,. ........................... 100 95 5 100 92 : 8 100 100 mum Woolen and w o rs te d ...................... 100 98 2 100 98 2 100 98 2 325 32$ references to the termination of the permanent arbitrator's services. In the former, agreement the arbitrator may be dis missed at any time on 30 days' notice by either party to the arbitrator and to the other party. In effect, however, the arbitrator's services may be terminated without notice, since the party requesting his dismissal.has the privilege or specifying that the arbitrator shall not render decisions in cases pending at the date of notice. Likewise, while the General Motors umpire is employed on an annual basis, he actually serves only as long as "he continues to be acceptable to both parties." AD HOC ARBITRATION Among the major agreements which provide ad hoe arbi tration are those with the following companiess. Boeing Air craft Co.., Consolidated-Vultee Aircraft Corporation (San Diego, California), Curtiss-Wright Corporation (Buffalo, N. Y.). Aluminum Co. of America (all agreements), General Electric Go., Westinghouse Electric & Manufacturing Co., Caterpillar Tractor .Co., Internationai-Harvester Co. (all.agreements), United States Steel Corporation and its subsidiaries, Wheeling Steel Corpora tion, Richfield Oil Corporation, Shell Oil Co., Sinclair Refin ing Co., and American Woolen Co. FINAL REPORT OF DIRECTOR OF CONCILIATION2 The use of voluntary arbitration has increased decidedly during the war and the increased use of arbitration has been substantially continued during the reconversion period as shown in the following tabulation: Fiscal Arbitrators Year Appointed 19* *0-**1 192 19^1-b2................ * * 5 3 19^2-1 * 3............... . 1,009 19^3-M i- . 1,185 19w - i*5 ................. 1,151 19** 5 - ^ 6 ................ 959 19**6-**7 1,008 The above figures only indicate the number of arbitra tors appointed by the Conciliation Service and do not include the cases in which the arbitrator was selected by some other means. The tremendous increase in the use of arbitration in the year 19**-2-**3 was undoubtedly due in large part to the no strike-noloekout pledge. During the period of this pledge labor and management looked to the use of voluntary arbitra tion as a method for voluntary adjustment of their disputes with increasing frequency. Great impetus was given to the use of arbitration by the policy of the National War Labor Board of ordering arbitration clauses in contracts in most cases where issue was raised. The continued high number of arbitra tion appointments by the Service is no doubt attributable to the increasing confidence of labor and management in the avail ability of impartial and competent arbitrators through the facilities of the Conciliation Service, The increasing self- government implicit in the use of voluntary arbitration is a tribute to the increasing maturity of labor-manageraent. rela tions. 2 U. S. Department of Labor, United States Concilia tion Service, Washington, D. C., August 21, 19*+7• Report from U, S. Conciliation Service to Secretary of Labor (mimeographed) APPENDIX C CASES CITED CASES CITED Matter of Page Amazon Cotton Mills (6 LA 139) .......... .239 , American Liberty Oil Company (5 LA 399)......... • • 238 American Radiator & Standard Sanitary Corporation (2 LA 24-5)................ .... ..... . 263 American Steel Package Company (14- LRR Man.) .... 224- American Telephone and Telegraph Company (6 LA 31) . 124- Andrew Steel Company (1 ALAA Par. 67,077)* ..... 256 Armour & Company (9 LA 338)............. 252, 254- Atlantic Foundry Company (8 LA 807). ........ 195 Bell Aircraft Corporation (1 LA 281) ........ 193, 235 Bethlehem Steel Company (5 LA 578) ......... 186, 195, Bethlehem Steel Company (7 LA 4-82) ......... 93, 240 Browne & Sharpe Manufacturing Company (7 LA 134-) • . 228 , 229, 24-2 Buffalo-Springfield Roller. Company (8 LA 212). . . . l8l, 234- Buffalo Weaving and Belting-Company (2 LA 59)• . . . 18 8, 202 Walter Butler (1 ALAA Par. 67,04-9) .......... 235 Cameron Manufacturing Company (4- LA 185) ...... l8l, 190 Campbell Soup Company (2 LA 27). •••••••••• 186, 189, F. G. Candy Manufacturing Company, Inc., (9 LA 139). 251 Celanese Corporation of America (9 LA 14-3) ..... 196, 222 Colgate-Palmolive Peet Company (2 LA 572). ..... loO, 254- Consolidated Steel Corporation (2 LA 178) . • . • • • 237 Copeland Refrigeration Corporation (8 LA 23) • • * • 222, 239 John Deere Tractor Company (2 ALAA Par. 6 7, 782) • • • 24-3, 251, 259 John Deere Tractor Company (9 LA 21) ......•• 24-7 Walt Disney Productions (2 LA 627).......... . 224- Erie Resistor Corporation (5 LA l6l) ........ 222, 236 Fairfield Paper Company (4-LA1)............ .. 236 Foote Brothers Gear & Machine Corporation (2 LA 84-). 24-3 , 24-9, Ford Motor Company (Opinion A-l) 162 Ford Motor Company (Opinion A-197).......... 155, 159 Ford Motor Company (1 ALAA Par. ©7,027). ...... 262 Fruehauf Trailer Company, Inc. (1 LA 507). ..... 159 General Motors Corporation (Decision C-4-). ..... 227 General Motors Corporation (Decision C-34-)....... 227 General Motors Corporation (Decision G-35) ..... 228 General Motors Corporation (Decision D-40) • • • . . 201 208 230 203 252, 256 329 330 Matter of Page General Motors Corporation (Decision E-190) ...... 22*+ General Tire & Rubber Company (6 LA 918) . ............ 232 Godfrey Conveyor Company (3 LA 757).................. 2o5 B. F. Goodrich Company (2 LA 278) . . . . . . .......... 186, 191 Goodyear Clearwater Mills (5 LA 619). ......... 183. 187, 1 8 8, 192, 19^ Goodyear Tire & Rubber Company (3 LA 257) ••••••• 256 Huron Milling Corporation {b LA M+8).................. 232 Indiana Railroad (b LA 70)............................ 206 Ingalls Iron Works (8 LA 26). ••••...•••••• 123, 192 Ingersoll-Rand Company (7 LA 56*+) ........ .. 233 ? 261 Inland Steel Company (1 LA 363) . .. ......... 226, 2^1 Inland Steel Company (*f LA 657) . ........... 12*f Inland Steel Company (1 ALAA Par. 6 7, 121)............ 91 International Association of Machinists (7 LA 231). . • 20b International Harvester Company (6 LA 73)............ 208, 238 International Milling Company (2 ALAA Par. 6 7, 828). , . 117 International Shoe Company (7 LA 9^1)......... l8l, 20 7 Joy Manufacturing Company (6 LA ^30). ......... 191 Kiernan-Hughes Company, Inc. (3 LA 89). ........ 250 Kirsch Company (5 LA 62^) . . . . . . . . . . . . . . . 225 Don Lee Broadcasting Company (1 LA 571) ...... • • • • • • 199 Le Roi Manufacturing Company (8 LA 350) ••...••. 209 Lonergan Manufacturing Company (2 ALAA Par. 67,8^0) . • 198 Michigan Steel Casting Company (6 LA 678) . ...... 16*+, 20b Ohmer Corporation (8 LA 9^3). • •••*.••••••• 208 Oxford Pants Company, Inc. (2 ALAA Par. 67,866) • • • • 199 Pacific Mills (2 LA 326). ................ 195, 23b Pacific Mills (3 LA l*fl). .......................... 182, 196, 202 Pan-American Petroleum Corporation. . . . (2 LA 5^1) . • 209, 230 I. M. Pearlstine & Sons (2 ALAA Par. 67,853) • ..... 230 Premier Metal Etching Company (3 LA 220;. .... . . . 2*+3, 250 Pullman-Standard Car Manufacturing Company (2_ LA 509) • 192, 193, 265 Reliable Optical Company (7 LA 257) .......... 251 Republic Oil Refining Company (2 LA 305)* ••*.••* 256 Republic Steel Corporation (6 LA 85)............. I0 8, 192 331 Matter of Page Reynolds Metals Company (7 LA. 752).................. 182, 190, Riley Stoker Corporation (7 LA. 76*+) * «v.............. 16*+ St, Louis Car Company (5 LA. 572) . • • * .......... ,23*+ Southern Pacific Company (2 LA 3*+6). ........ *l6l, 221 Spencer-Kellogg & Sons, Inc. (1 LA 291)......... * *186, 195 Standard-Coosa Thatcher Company (17 LRR 613) . . . • ,183, 195 Stearns Coal and Lumber Company (1 LA 27*+) , , , • , ,257 Steinway & Sons (7 LA 289) 2^3, 2*+*+ K. Stenzel & Sons (8 LA 76).......................... 12*+ £1, Stenzel & Sons (8 LA 9*+3) .,,,•••»•«»•» 251 Sternwild Knitting Mill, Inc. (6 LA 586)............ 251 Submarine Signal Company (*f LA 56) ,118, Texas Textile Mills (5 LA 762) . . ................ 257 Timken-Detroil Axle Company (6 LA 736).............. 202, 208 Union Oil Company (3 LA 108)............. .212, 230 U. S. Rubber Company (6 LA * + 0 8). ........... .186, 19*+, U. S. Rubber Company (9 LA 99) . . * ................ 2*+5, 2* 1 -6 Volco Brass & Copper Company (7 LA*+71) ....... .223 Walworth Company (5 LA 551) •••••••••••• .260, 261 Walworth Company (6 LA 858) ...•••••••.. .2 6 2 Warner Brothers Cartoons, Inc. (2 LA 67) ............ 256 Waterfront Employers Association of the Pacific Coast (6 LA 719) .......... .92 Waterfront Employers Association of the Pacific Coast (2 ALAA Par. 6 7, 786) .............. 92 Webb Coal Mining Company (1 ALAA Par. 6 7, 2*+l) . . . . .222 Wilkes-Barre Iron Manufacturing Company (2 ALAA Par. 6 7, 892) . . . . . . . . . . . . . . . . . . . .199 202 196 Ohl&ersfty of Southern California LiteMt?
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