ENTERPRISE WIRE CO.(46
LA 359, 1966) Decision of Arbitrator
In re ENTERPRISE WIRE COMPANY (Blue Island, Ill.] and ENTERPRISE
INDEPENDENT UNION
March 28, 1966
Arbitrator: Carroll R. Daugherty
[DISCHARGE- Absenteeism - Unsatisfactory work-Tests
for ‘just cause’ -- 118. 6361 -- 118.651]
Employer was justified in discharging employee
for record of unexcused absences and for failure to tag materials
correctly as required by his job. Employer’s action meets tests for
“just cause” for discharge: (1) Employee was forewarned of consequences
of his actions; (2) company’s rules are reasonably related to business
efficiency and performance employer might expect from employee; (3)
effort was made before discharge to determine whether employee was
guilty as charged; (4) investigation was conducted fairly and
objectively; (5) substantial evidence of employee’s guilt was obtained;
(6) rules were applied fairly and without discrimination; and (7) degree
of discipline was reasonably related to seriousness of employee’s
offense and employee’s past record. (C. Daugherty)Enterprise Wire Co.,
46 LA 359.
Appearances: For the union Philip R. Davis, attorney. For the
company-Jay G. Swardenski, Seyfarth, Shaw, Fairweather, and Geraldson,
attorney.
TESTS FOR 'JUST CAUSE'
Factual Background
Daughterty, Arbitrator:-On October 8, 1965, the Company
communicated to grievant X- an employment termination notice, signed by
the plant manager and by the assistant plant superintendent and giving
as the reasons for X’s dismissal unsatisfactory work, including
absenteeism, plus insubordination or refusal to work as directed.
The aggrieved employee had been hired on April 13, 1965, and had
been trained as a wire rod cleaner in the Cleaning Department, second
shift. The Company receives coils of wire rod from its suppliers, and
said coils vary in diameter and metallurgical composition. Before the
coils reach the cleaner employee , they are welded together at the ends
in sets of three to form a “pin” and are tagged for identification as to
diameter and composition. The cleaner’s job is to clean the pins in an
acid tank, preserve their identities, and respectively to re-tag them
after they have been so pickled and as they are left suspended from a
sort of beam called a “yoke.” The tag is a rectangular piece of
cardboard with spaces to be filled in as to size and other
characteristics of the wire rod in the pin and as to the identity of the
wire-drawing machine to which the pin is to go. At the top of the tag is
a reinforced hole through which a fine, flexible wire is placed by the
cleaner, fastened to a strand of rod in the pin, and wound or twisted to
prevent detachment.
Failure properly to tag each pin results in production delays,
cost increases, and customer dissatisfaction (when orders for wire are
not filled according to specifications). Alleged continued failure to
tag some of his pins properly-either through allegedly not tagging some
pins at all or through allegedly not marking the machine number on some
of them was the immediate cause of X’s discharge.
Other material facts are set forth below under Findings and
Opinion in respect to the issue of “just cause.”
Contract Provisions
The provisions of the Parties’ controlling Agreement cited by
the Company read as follows:
Article IV
Hours of Work and Overtime
Section 10. Absence From Work. Any employee absent from
work for any cause is required to report at once to the
Superintendent and arrange his next scheduled work shift. Any
employee unable to report on his regularly scheduled shift shall
notify his foreman or the Superintendent at least two hours
prior to the start of the shift. Any employee failing to report
as described above will, on the second offence, be given
disciplinary layoff of one shift. Repetition of this practice
without proper cause will be considered basis for discharge.
Article VII
Management
The Union hereby recognizes that the management of the
plant and the direction of the working forces, including, but
not limited to the right to direct, plan and control plant
operations, to establish and change working schedules, to hire,
transfer, suspend, discharge or otherwise discipline employees
for cause, to promulgate, administer and enforce plant rules, to
relieve employees because of lack of work or for other
legitimate reasons, to introduce new or improved methods or
facilities and to manage its properties, is vested exclusively
in the Company. It is understood that the aforesaid rights of
management shall not be exercised in a manner inconsistent with
the other provisions of this Agreement.
Any rights not specifically abridged, qualified or
limited by this Agreement are reserved exclusively to the
Company
Article VIII
Discipline
Section 1. Proper Cause. No employee shall be discharged
or otherwise disciplined except for proper cause.
Section 2. Discharge or Discipline Grievance. Any case
of discharge or other discipline may be taken up through the
grievance procedure, but any such grievance must be presented
within three working days after the disciplinary action occurs.
Section 3. Notice to Union. The Union shall be notified
within one working day of any disciplinary action taken against
any employee covered by this Agreement.
The Union contends that the Company’s
disciplinary action violated the Agreement but cites no provisions
thereof alleged to have been breached.
Arbitrator’s Findings and Opinion
Article VII, quoted above, affirms the Company’s right to
discipline for “cause”; and Article VIII, Section 1, requires “proper
cause” for discipline, including discharge. No provision in the
Agreement defines these terms; that is, no contractual criteria exist
for determining from the facts of any disciplinary case, including this
one, whether or not the Company had just cause for its decision.
Therefore it is necessary for the Arbitrator to supply and apply his own
just cause standards. Same are set forth in detail as an Appendix to
this decision. In what follows, the Arbitrator makes findings of fact
from the evidence of record in respect to each criterion.
Question No. 1: The record establishes
that the Company gives to each employee a copy of a booklet labeled
“INTRODUCTION TO ENTERPRISE WIRE CO.” Pertinent portions thereof are
reproduced just below:
PLANT INFORMATION AND RULES
In order to have our plant operate at maximum efficiency
and insure the safety
of the individual and plant property, it is necessary for all
workers to abide by certain rules and regulations. We believe
this will provide for our mutual protection and benefit. Rules
cover the following areas: instructional, standard practice, and
disciplinary.
GENERAL INFORMATION AND RULES
ABSENTEEISM: Employees are required to notify or call
their foreman or superintendent when, for any reason, they are
unable to be present or anticipate a late arrival. (Shop
employees are referred to Article IV, Section 10 of the union
contract.)
ADMINISTRATION OF DISCIPLINE:
The welfare of the company as a whole must be considered
first, because it represents the total welfare of the entire
group. Rules and regulations are established for the guidance
and protection of all employees. Employees should be familiar
with the rules and govern themselves accordingly. Failure to do
so will result in disciplinary action, including suspension and
discharge.
Disciplinary action may be in the form of verbal
reprimand or written notice type. Our written notice type is
based upon three notices within a twelve month period. The first
warning notice is issued as a serious warning when verbal
reprimand has failed. The second written warning notice carries
a time off penalty related to the seriousness of the offense.
The third notice requires suspension or discharge.
Disciplinary action will be taken in the following
instances:
16. Insubordination, inability or refusal to perform
assigned duties.
18. Unsatisfactory performance of duties assigned to the
employee.
From the above the Arbitrator must find that X
had been put on notice in respect to (1) the necessity for notifying the
Company about impending absence or tardiness; (2) the necessity for
satisfactory compliance with job requirements and supervisory directions
when actually at work; and (3) the possible disciplinary consequences of
failing to fulfill said requirements.
In addition to the above finding, which is general in nature,
the evidence of record supports the firm conclusion that X had been put
on much more specific notice in respect to absenteeism, absence
notification and work performance: (1) On June 16, 1965, X’s foreman
spoke to him about his absences and placed in his personnel file a
written memorandum (not a formal warning notice) summarizing said
interview. (2) On July 27, 1965, a formal written warning notice was
issued to X (and placed in his file) and a one-day suspension was
imposed for his having been absent on two preceding days and for his not
having notified the company thereon. Said notice also promised further
discipline for repetition of the offense. (3) On September 13, 1965, X
received a second such notice and one-day suspension for the same
offense. He was also then put on a three-month probation. “Further
action” was promised for his next “warning for any Reason.” (4) During
the first week in October, 1965, X received four oral communications
from three management persons-his two immediate foremen (who divided
supervision of X’s shift) and the assistant plant superintendent-in
respect to his alleged failure to tag some of his cleaned pins or
properly to mark some of the pins he did tag. Neither of the foremen
explicitly warned him that continued dereliction of tagging duty would
lead to discipline; but on the evening before the discharge the
assistant superintendent told X that if he (the assistant
superintendent) found the next morning that X’s pins were not
identified, the assistant superintendent would have to discharge him.
From all of the above, the Arbitrator must find that the answer
to Question No.1 is clearly and strongly “Yes.”
Question No. 2: The record contains no
evidence, nor indeed does the Union contend, that the Company’s rules
and warning against absenteeism, against failure to notify the Company
on same, and against tagging laxity were and are not reasonably related
to Company efficiency and X’s work capability. The answer to the second
criterion must also be a strong “Yes.”
Questions Nos. 3 and 4: On this
Question the weight of the evidence of record warrants the following
conclusions: (1) As to absenteeism and failure to notify: (a) The
offense is of
such a nature that, given X’s records thereon, a prior further
investigation into the fact was unnecessary. But there was no explicit
testimony about whether or not the Company asked X to explain or excuse
his lapses in this area. (2) As to X’s alleged tagging failures: (a)
This offense was of a different sort. At the hearing there was no
controversion of the Company’s evidence that on the three mornings
preceding the date of X’s discharge some of the pins that he had cleaned
the prior evenings either lacked tags entirely or, if tagged, lacked
wiredrawing - machine identification. Then, given the Company-conceded
possibility that X- might have tagged all his cleaned pins
properly those evenings and some one else or some post-shift occurrence
might have caused the tickets to be removed or lost after X went home,
the Company would be on firmer ground here if it had taken the pains to
question material handlers and other employees who conceivably might
have been involved in order to remove as much doubt in this area as
possible. On the other hand, if some of the tags that X did attach on
those evenings did not bear machine numbers, no further inquiry into
this portion of his alleged offense was needed. (c) X, at the times he
was spoken to by management, had ample opportunity to try to justify or
explain his tagging deficiencies if same existed. The Company cannot be
held to have been seriously remiss in this field of its investigation.
The Company is not shown actively to have solicited from X any
justification for his alleged sins of omission; but the Company may not
rightly be found to have denied him such opportunity. (d) A relatively
detached management official, higher than X’s foremen, made the
determining inquiries.
On balance, the Arbitrator holds that the answer to these two
Questions is a moderate “Yes.”
Question No. 5: Of all the seven
questions, the fifth is the crucial one here. This statement is grounded
on two facts of record: (1) The evidence on this Question is in direct
conflict. At the hearing the Company witnesses testified forthrightly
that on the mornings of that October week, after X had left the
preceding nights, some of his cleaned pins lacked tags entirely or, if
tagged,
lacked machine numbers. They also testified that, although X at first
denied any tagging failures whatever, he later (twice) admitted having
tagged only “most” of his pins. On the other hand, X himself at the
hearing just as forthrightly testified that he had tagged all his pins,
and only two tags lacked machine numbers because some one came to take
them immediately to the right machine, thus obviating any need for so
identifying them. He also denied ever conceding to the Company that he
had tagged only “most” of his pins. (2) No management person checked on
X’s tagging at the ends of his shifts that week. His foreman
spot-checked his tagging those evenings and found same entirely
satisfactory; but his checking ended one hour before X’s shifts ended;
and no further checking was done until the next mornings. Thus the
record is blank on what happened from 10 p.m. until the morning checks.
This Arbitrator has no means for resolving the conflicts in
testimony or for filling in the blank area in facts. His function here
is to determine whether the Company’s decision-maker or “judge” (the
plant manager) had reasonable, non-arbitrary grounds for accepting the
word and conclusions of his managerial subordinates rather than any
denials X may have made.
On this issue the Arbitrator finds as follows: He has no proper
basis for ruling that the Company’s decision that X was guilty of the
alleged tagging offense was so unreasonable or arbitrary as to have
constituted an abuse of managerial discretion. The record contains no
probative evidence that either the Company or some fellow employee was
trying to “frame” X. The Company’s evidence on the tagging matter must
be ruled to have been sufficiently substantial to support its decision.
In respect to the absenteeism question, the Company must be held
to have had amply substantial evidence of X’s failures.
Given all the above, the answer to Question No. 5 must be a
fairly strong “Yes.”
Question No. 6: The record contains no
evidence of probative value that would support a finding of Company
discrimination against X in the action it took. The answer to this
Question is “Yes.”
Question No. 7: This Question is a
two-fold one. In the light of the Notes set forth in the Appendix
hereto, as applied to the facts of record here, the answer to Question
7(a) must be “Yes.” The Arbitrator has held that the Company properly
found X guilty of violating its reasonable rule on absenteeism and its
reasonable shop rules Nos. 16 and 18. Such violations in the context of
this case constituted a serious offense. The Company may not be found to
have been unreasonable or arbitrary in deciding on discharge rather than
on some lesser penalty.
As to Question No. 7 (b) , the Union makes
two contentions: (1) X’s record on absenteeism has no bearing on his
discharge, for he had already been penalized for same. (2) The Company
violated the contractual provision that three warning notices for the
same offense are necessary before discharge can be imposed.
The Arbitrator is forced to reject both these
contentions. As to (1), the reasons will be evident from the Appendix
Notes to Question No. 7. As to (2) , the following should be noted: (a)
There is nothing in the Agreement about the necessity for three warning
notices for the same offense before discharge. The Company’s own
discipline rules (previously quoted) were unilaterally issued and are
not a part of the Agreement because not referred to there. (b) Even if
same were in the Agreement, (i) they can not be interpreted in the
manner contended for, because there is no statement that the three
notices have to be for the same sort of offense: and (ii) nothing
therein would prevent the Company from discharging an employee for a
truly serious first offense.
The Arbitrator finds that the Company’s decision here was not
unreasonably related to X’s record.
Then the answer to the whole of Question No. 7 must be held to
be “Yes.”
The Arbitrator has found that all seven Questions merit
affirmative answers. Accordingly, he must now rule that there is no
proper basis for sustaining X’s grievance.
AWARD
The grievance is denied.
TEST APPLICABLE FOR LEARNING WHETHER EMPLOYER
HAD JUST AND PROPER CAUSE FOR DISCIPLINING AN EMPLOYEE
Few if any union-management agreements
contain a definition of “just cause.” Nevertheless, over the years the
opinions of arbitrators in unnumerable discipline cases have developed a
sort of “common law” definition thereof. This definition consists of a
set of guide lines or criteria that are to be applied to the facts of
any one case, and said criteria are set forth below in the form of
questions.
A “no” answer to any one or more of the following questions
normally signifies that just and proper cause did not exist. In other
words, such “no” means that the employer’s disciplinary decision
contained one or more elements of arbitrary, capricious, unreasonable,
or discriminatory action to such an extent that said decision
constituted an abuse of managerial discretion warranting the arbitrator
to substitute his judgment for that of the employer.
The answers to the questions in any particular case are to be
found in the evidence presented to the arbitrator at the hearing
thereon. Frequently, of course, the facts are such that the guide lines
cannot be applied with precision. Moreover, occasionally, in some
particular case an arbitrator may find one or more “no” answers so weak
and the other, “yes” answers so strong that he may properly, without any
“political” or spineless intent to “split the difference” between the
opposing positions of the parties, find that the correct decision is to
“chastize” both the company and the disciplined employee by decreasing
but not nullifying the degree of discipline imposed by the company---e.g.,
by reinstating a discharged employee without back pay.
It should be clearly understood also that the criteria set forth
below are to be applied to the employer’s conduct in making his
disciplinary decision before same has been processed
through the grievance procedure to arbitration. Any question as to
whether the employer has properly fulfilled the contractual requirements
of said procedure is entirely separate from the question of whether he
fulfilled the “common law” requirements of just cause before the
discipline was “grieved.”
Sometimes although very rarely, a union-management agreement
contains a provision limiting the scope of the arbitrator’s inquiry into
the question of just cause. For example, one such provision seen by this
arbitrator says that “the only question the arbitrator is to determine
shall be whether the employee is or is not guilty of the act or acts
resulting in his discharge.” Under the latter contractual statement an
arbitrator might well have to confine his attention to Question No. 5
below-or at most to Questions Nos. 3, 4, and 5. But absent any such
restriction in an agreement, a consideration of the evidence on all
seven Questions (and their accompanying Notes) is not only proper but
necessary.
The Questions
1. Did the company give to the employee forewarning or
foreknowledge of the possible or probably disciplinary consequences of
the employee’s conduct?
Note 1: Said forewarning or foreknowledge may properly have been
given orally by management or in writing through the medium of typed or
printed sheets or books of shop rules and of penalties for violation
thereof.
Note 2: There must have been actual oral or written
communication of the rules and penalties to the employee.
Note 3: A finding of lack of such communication does not in all
cases require a “no” answer to Question No. 1. This is because certain
offenses such as insubordination, coming to work intoxicated, drinking
intoxicating beverages on the job, or theft of the property of the
company or of fellow employees are so serious that any employee in the
industrial society may properly be expected to know already that such
conduct is offensive and heavily punishable.
Note 4: Absent any contractual prohibition or restriction, the
company has the right unilaterally to promulgate reasonable rules and
give reasonable orders; and same need not
have been negotiated with the union.
2. Was the company’s rule or managerial
order reasonably related to (a) the orderly, efficient, and safe
operation of the company’s business and (b) the performance that the
company might properly expect of the employee?
Note: If an employee believes that said rule or order is
unreasonable, he must nevertheless obey same (in which case he may file
a grievance thereover) unless he sincerely feels that to obey the rule
or order would seriously and immediately jeopardize his personal safety
and/or integrity. Given a firm finding to the latter effect, the
employee may properly be
said to have had justification for his disobedience.
3. Did the company, before administering
discipline to an employee, make an effort to discover whether the
employee did in fact violate or disobey a rule or order of management?
Note 1: This is the employee’s “day in court” principle. An
employee has the right to know with reasonable precision the offense
with which he is being charged and to defend his behavior.
Note 2: The company’s investigation must normally be made before
its disciplinary decision is made. If the company falls to do so, its
failure may not normally be excused on the ground that the employee will
get his day in court through the grievance procedure after the exaction
of discipline. By that time there has usually been too much hardening of
positions. In a very real sense the company is obligated to conduct
itself like a trial court.
Note 3: There may of course be circumstances under which
management must react immediately to the employee’s behavior. In such
cases the normally proper action is to suspend the employee pending
investigation, with the understanding that (a) the final disciplinary
decision will be made after the investigation and (b) if the employee is
found innocent after the investigation he will be restored to his job
with lull pay for time lost.
Note 4: The company’s investigation should include an inquiry
into possible justification for the employee’s alleged rule violation.
4. Was the company’s investigation
conducted fairly and objectively?
Note 1: At said investigation the management official may be
both “prosecutor” and “judge,” but he may not also be a witness against
the employee.
Note 2: It is essential for some higher, detached management
official to assume and conscientiously perform the judicial role, giving
the commonly accepted meaning to that term in his attitude and conduct.
Note 3: In some disputes between an employee and a management
person there are not witnesses to an incident other than the two
immediate participants. In such cases it is particularly important that
the management “judge” question the management participant rigorously
and thoroughly, just as an actual third party would.
5. At the investigation did the “judge”
obtain substantial evidence or proof that the employee was guilty as
charged?
Note 1: It is not required that the evidence be conclusive or
“beyond all reasonable doubt.” But the evidence must be truly
substantial and not flimsy.
Note 2: The management “judge” should actively search out
witnesses and evidence, not just passively take what participants or
“volunteer” witnesses tell him.
Note 3: When the testimony of opposing witnesses at the
arbitration hearing is irreconcilably in conflict, an arbitrator seldom
has any means for resolving the contradictions. His task is then to
determine whether the management “judge” originally had reasonable
grounds for believing the evidence presented to him by his own people.
6. Has the company applied its rules,
orders, and penalties evenhandedly and without discrimination to all
employees?
Note 1: A “no” answer to this question requires a finding of
discrimination and warrants negation or modification of the discipline
imposed.
Note 2: If the company has been lax in enforcing its rules and
order, and decides henceforth to apply them rigorously, the company may
avoid a finding of discrimination by telling all employees beforehand of
its intent to enforce hereafter all rules as written.
7. Was the degree of discipline
administered by the company in a particular case reasonably related to
(a) the seriousness of the employee’s proven offense and (b) the record
of the employee in his service with the company?
Note 1: A trivial proven offense does not merit harsh discipline
unless the employee has properly been found guilty of the same or other
offenses a number of times in the past. (There is no rule as to what
number of previous offenses constitutes a “good,” a “fair,” or a “bad”
record. Reasonable judgment thereon must be used.)
Note 2: An employee’s record of previous offenses may never be
used to discover whether he was guilty of the immediate or latest one.
The only proper use of his record is to help determine the severity of
discipline once he has properly been found guilty of the immediate
offense.
Note 3: Given the same proven offense for two or more employees,
their respective records provide the only proper basis for
“discriminating,” among them in the administration of discipline for
said offense. Thus, if employee A’s record is significantly better than
those of employees B, C, and D, the company may properly give A a
lighter punishment than it gives the others for the same offense; and
this does not constitute true discrimination.
Note 4: Suppose that the record of the arbitration hearing
establishes firm “Yes” answers to all the first six questions. Suppose
further that the proven offense of the accused employee was a serious
one, such as drunkenness on the job; but the employee’s record had been
previously unblemished over a long continuos period of employment with
the company. Should the company be held arbitrary and unreasonable if it
decided to discharge such an employee? The answer depends of course on
all the circumstances. But, as one of the country’s oldest arbitration
agencies, the National Railroad Adjustment Board, has pointed out
repeatedly in innumerable decisions on discharge cases, leniency is the
prerogative of the employer rather than of the arbitrator; and the
latter is not supposed to substitute his judgment. In this area for that
of the company unless there is compelling evidence that the company
abused its discretion. This is the rule, even though an arbitrator, if
he had been the original “trial judge,” might have imposed a lesser
penalty. Actually the arbitrator may be said in an important sense to
act as an appellate tribunal whose function is to discover whether the
decision of the trial tribunal (the employer) was within the bounds of
reasonableness above set forth.-In general, the penalty of dismissal for
a really serious first offense does not in itself warrant a finding of
company unreasonableness. |