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THE ARBITRATOR’S ACTUAL DECISION IN EACH OF THE SIXTEEN
ARBITRATION CASES PRESENTED IN THE TEXTBOOK
Case 1
A LOADED HANDGUN AND SUSPECTED COCAINE IN HER PURSE
DISCUSSION
It is clear that failure to conform to Drug Enforcement Administration rules on the part of the
management could indeed, as the Company has argued, cause a severe economic hardship to the
employer in the form of loss of its large controlled substance business. And it is no less obvious, from
the straightforward wording of Section 1301.92 of the DEA rules, that the employer bears the
immediate responsibility for taking independent action regarding the continued employment of
employees who have engaged in controlled substance wrongdoing. Indeed, the employer is required
by this provision to assess specifically “the seriousness of the employee’s violation, the position of
responsibility held by the employee, past record of employment, etc.” in determining the appropriate
action on its part regarding the continued employment.
The Company is also on solid ground, in the arbitrator’s opinion, in pointing out that the
language of 1301.92 in no way limits the management responsibility to illicit activities taking place
on the premises: independent Company action is mandated by 1301.92 no matter where the
controlled substance wrongdoing has been engaged in.
Just as patently, however, such a governmental stricture is hardly tantamount to a
command that discharge must necessarily result from the Company’s investigation: suspension,
transfer, “or . . . other action” are also explicit possibilities envisioned by the DEA, to be applied as
the specific circumstances justify.
Moreover, as both of the very competent and experienced representatives in this arbitration
are well aware, management’s right to discharge employees for conduct away from the plant pivots
strictly on whether or not the improper conduct can be said to negatively affect plant operations in a
reasonably discernible way. For the arbitrator to disregard this key principle, one which is so deeply
embedded among arbitrators that no citations at all are deemed necessary, would constitute a gross
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would have jeopardized its continuing controlled substance business, such a contention—in the
absence of any hard evidence at all to support it—must be treated strictly as pure speculation.
The Company, in the arbitrator’s opinion, fully satisfied its obligation to the DEA by
assessing the grievant’s illicit conduct in the light of such relevant factors specified in Section
1301.92 as “the seriousness of the employee’s violation, the position of responsibility held by the
employee, past record of employment, etc.” before determining what action to take vis-à-vis
Ms. Marino. As stated above, an objective reading of the Section must lead to the conclusion that it
was obligated to do no more, for 1301.92 allows the Company to come to any decision that it wants—
based upon these factors—regarding what action, if any, it should take regarding the erring
employee. The assessment is mandatory for the Company under the DEA rules, but whether the
employer decides, in the precise words of 1301.92 “to suspend, transfer, terminate or take other
action against the employee” is very much in its own hands, so long as the conclusion stems from the
assessment.
Finally, against the Company’s assertion that the grievant would have been terminated
anyhow, for unexcused absenteeism after two months in jail (thereby harming the employer to the
extent that it would need to procure a replacement for Marino), must stand the Union’s testimony
that it had assurance that she would have been out on work release in less than two months had the
employer so requested, and Marino was in any event scheduled to be released (as above) on May 11,
2007, or after less than two months of imprisonment.
Given these considerations, the arbitrator would find it hard to grant controlling powers to
the Company’s long-standing and apparently well communicated Security and Drug Abuse policy,
with its unequivocal statement that the Company “will discharge any employee illegally involved
with the possession, use, sale or diversion of drugs” even if the employer had faithfully implemented
AWARD
The Company did not have proper cause to discharge Mary Marino. She is accordingly to be
reinstated and made whole for all monies and seniority lost from September 24, 2006, the date of her
termination, to March 19, 2007, the date of her incarceration.
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Case 2
FIGHTING ON THE EMPLOYER’S PREMISES
DISCUSSION
It is, in the arbitrator’s opinion, absolutely impossible to conclude with conviction that Fred Brooks
was guilty of assault—the violent and willful attack upon another—in his actions of July 15, 2002.
The sole indication that the grievant may have so acted lies in the testimony of Harold Thomas that
Brooks walked up to him with a knife, said, “Harold, this is it,” and attempted to stab him with the
knife before Thomas successfully relieved Brooks of the weapon (Tr. 1, pp. 12–15). Company witness
Eric Taylor’s testimony, as the Company well recognizes, was far more conjectural than this; no
other witnesses could shed light on the matter at all; and Thomas can under no conditions be said to
have been either the most objective or the most credible of witnesses.
Thus, it can fairly be said that of the three alleged offenses for which Brooks was discharged,
the only one that carries with it an automatic dismissal for the first infraction must remain in some
doubt.
But fighting on the employer’s premises—certainly the focal issue in this dispute, with
Brooks’ “destruction of Company property” allegedly stemming directly from it—is nonetheless so
serious a matter that arbitrators have not hesitated at all, as both parties to this dispute are fully
aware, in sustaining the discharges of workers who have engaged in it if there are no mitigating
circumstances.
Was this the case?
If one exempts the two direct parties to the Brooks-Thomas altercation from consideration,
only one eyewitness to the entire fracas was produced by either party. Fellow forklift driver Eric L.
Taylor testified, under oath, in responding to questions from Company counsel, as follows:
Q. Did you see what happened between Fred Brooks and Harold Thomas on the loading dock on
that day?
A. Yes.
Q. What did you see?
A. I was ready to go back to the loading dock to door one to get some glass off. And, at the time,
Fred Brooks’ lift was parked and he was off it. And, him and Harold was talking. Didn’t
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Q. They fell in the racks?
A. Yes. Harold was on top of him in the racks. And, he was telling Fred Brooks he didn’t want to
fight him. About that time, he said, “I’m going to let you up, but don’t you hit me.” That’s
when Fred Brooks took a case of ten ounce pickles and threw them at him. About that time
•••
Q. Did either of them say they didn’t want to fight anymore?
A. Harold kept saying he didn’t want to fight. And Fred Brooks wasn’t through with the stuff.
Q. Fred Brooks wasn’t through with it?
A. No.
Q. Did Fred Brooks make the move against Harold first?
A. His hand went up in the direction like he was going to make the move. So, by that time, like
most of us, if you make a flaky move, somebody’s going to be all over the top of you.
Q. After Harold got Brooks down, did Harold say he didn’t want to fight?
A. Yes.
•••
Q. After Harold took the knife away from Fred, did he again tell Fred that he didn’t want to
fight, after he took the knife away?
(Tr. 1, pp. 50–56)
Obviously, this testimony, which substantially agrees with that of Mr. Thomas, is not
consistent with that of Mr. Brooks at all. In the latter’s version of what happened on July 15, 2002,
Thomas grabbed his (Brooks’) knife from his (Brooks’) lift and . . . He took and grabbed the knife and
held it up like this and was punching me with his left hand. And he had the knife in this hand. And,
I was steady moving back from him, because I didn’t want to be getting cut. And I was steady
moving away from him. . . .
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In Brooks’ version, too, the grievant hit Thomas only in self-defense, as Thomas kept coming
toward him with the knife, and Brooks ultimately threw one case of jars at Thomas for the same
Witness Taylor, on the other hand, had no established personal or professional stake at all in
the outcome. He thus had no demonstrated incentive to testify in any but the most truthful of ways.
If he had any personal bias or antagonism toward Mr. Brooks, this was not remotely shown by the
Union. Nor, upon consideration of the whole record, can the arbitrator conclude that Mr. Taylor’s
credibility was in any way placed in doubt by the Union, whose counsel indeed himself drew upon
several portions of the Taylor testimony in his closing argument.
Influenced by these considerations, the arbitrator’s exercise of judgment has thus led him to
accept the Taylor position as a statement of what happened in the July 15, 2002 Brooks-Thomas
incident.
This Taylor testimony hardly portrays Harold Thomas as a man of peace, of course. He did
indeed, apparently because of a not necessarily valid fear that Brooks’ “flaky move” in putting his
hand up meant that Brooks was going to hit him, grab Brooks and then slam him into the pallets,
following which he pursued a fleeing Brooks. But neither does the testimony depict Fred Brooks as
In this regard, the Taylor testimony must also receive greater weight than that of Company witness
Dorothy Rivkin. Miss Rivkin did testify, as the Union has pointed out, that Thomas was facing
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deadly instruments were not only involved but personally wielded by him, blood was drawn, and
Company property was destroyed. At the very least, Brooks—who admittedly improperly left his
work place to go to Thomas’ area—made no attempt to avoid the encounter and willfully and
deliberately prolonged it. Under these circumstances, discharge does not appear to be too severe a
penalty.
AWARD
Fred Brooks was discharged for just cause.
Case 3
ABUSIVE LANGUAGE TOWARD A SUPERVISOR
DISCUSSION ALLEGED RULE 13 VIOLATION
Whether or not any witnesses were present at the time of Mr. Wood’s alleged Rule 13 violation must
forever remain shrouded in doubt insofar as this arbitration is concerned. Neither Quality Control
Supervisor Francis Adano nor General Production Foreman William O’Brien, by their own testimony
at the hearing, heard the grievant call Supervisor Hines either a “lying asshole” or a “lying ass.” And
no testimony from Lyman Stone, who may or may not have heard Wood use such language was, as
noted, offered at all. There were no other claimed witnesses.
But Section I of the “Working With the Company” Plant Rules hardly commands automatic
dismissal for Rule 13 (or any other) stipulated offenses. While obviously sanctioning termination, it
simply and clearly states that for these offenses employees “will be subject to disciplinary action up
to an including immediate dismissal.” And, given this latitude, the arbitrator is obligated, as the
Union has quite correctly emphasized, to ensure that the punishment fits the crime.
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acknowledged that the use of “abusive, profane or improper language . . . on Company property” is a
not uncommon occurrence.
Nor, secondly, can the high probability that there was some provocation for Wood’s offense on
the part of Hines be ignored in this equation. Mr. Hines testified that less than three hours before
the Rule 13 incident he had informed the grievant’s girl friend, Nancy A. Morse, that her work
performance would be much better if “she stopped loafing and marching up and down the aisle and
spending so much time with [Wood] in the wash mill or at her or his work station.” It was
ALLEGED RULE 7 VIOLATION
It is beyond question that the normal practice for handling serious disciplinary breaches on the
second shift has been for the management to suspend immediately and then to conduct a scheduled
hearing the next day. Not only did the testimony of Company witnesses Hines, O’Brien and Bruce
support such a conclusion, but so, too, did that of Union Grievance Committee chairman (and
adversarial Company witness) John B. Rowan. Nor is there any contractual requirement that
employees suspended pending discharge or discipline be allowed Union representation before they
are obligated to vacate the premises, a conclusion reached by Arbitrator Stebbins in her 1996
arbitration award (Co. 6, pp. 14–15) involving the same contractual language and the same parties
and therefore persuasive in the instant arbitration.
What is no less relevant, however, is that grievant Wood apparently believed (if incorrectly)
that he was contractually allowed such Union representation—certainly not a far-fetched inference
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MR. WOOD’S EMPLOYMENT RECORD
An offense may obviously be mitigated by a good employment record and, just as clearly, intensified
by a bad one. But it is difficult to judge the grievant’s own record as warranting either of these
modifying measures.
Allan Wood, in Dudley Hines’ own testimony, had been a “good worker” when he worked
under Hines’ supervision for approximately six weeks, in 2002 in Department 28, and Hines had told
Wood so. And Union witness Ken Emerson also testified that Hines had told him after Wood’s
suspension that Wood “was a good worker and would still be if it weren’t for Nancy.”
AWARD
Allan Wood did violate Rule 13, although not Rule 7, on October 2, 2002, and his employment record
can in no way be construed as a mitigating factor in this violation. Given the relative frequency of
abusive and improper language in the plant, the probable presence of some provocation on Dudley
Hines’ part, and the absence of any clear precedents on the Company’s part in applying Rule 13,
however, discharge is deemed to be too severe a penalty for the grievant, who nonetheless warrants a
meaningful disciplinary action for his abusive and improper language to his immediate supervisor.
Mr. Wood is accordingly to be reinstated, but given a two-week suspension in lieu of the
discharge, and to be made whole only for wages, benefits and seniority lost in excess of these two
weeks.
Case 4
OVERLOOKED FOR AN UNANTICIPATED VACANCY
DISCUSSION
In the absence of any Labor Agreement provision dealing specifically with the issue involved here,
disposition of this case necessarily pivots squarely on the sole two factors stressed, understandably
with different conclusions, by both parties. First, has it been a well established past practice to
require employees to perform “make–up work,” as the Company has insisted, or has payment for not
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working been a common occurrence, as the Union has argued? And, second, how (if at all) germane to
the instant arbitration is arbitrator Roberts’ 1997 decision?
Union witnesses Drooker and Coolidge testified that “in a number of instances” (Union Post–
Hearing Brief, p. 1) employees have indeed been paid for not working, and they cited specifics to
back up these statements. Without contravention, Ms. Drooker argued that she herself was the
beneficiary of such payment in the spring of 1999; and Union President Coolidge, again without
refutation, pinpointed the payment of Paul Homans on two occasions, the pay-for-no-work cases of
six Dryline #4 employees in the spring of 1999, and a July, 2002 payment to Jim Hadley as
additional examples. There is no reason at all to believe that at least these ten settlements were not
as described by the Union.
that.”
No precise formula can, of course, be devised as to what it takes in terms of longevity and
repetition to establish a practice, but it seems clear that a strong tradition here has been to require
employees to perform “make–up work” when overlooked in the filling of an unexpected vacancy.
This latter conclusion was, of course, arrived at by Mr. Roberts in his 1997 decision and his
judgment cannot be casually dismissed six years later. Respect for both arbitration as an institution
and labor relations stability command in fact that a prior award involving the same contractual
relationship and the same contractual language be given the heaviest of weight unless the prior
award was clearly in error or changing conditions have made the original verdict obsolete.
Neither of the latter factors can be said to apply in this situation. There is no evidence at all
Convinced that it has been long standing Company practice—adhered to generally, although
not invariably—to offer “make–up” work to overlooked employees, and finding the Roberts decision
quite germane to the instant arbitration, I must conclude that the appropriate remedy in situations
of this kind is the one originally offered to the grievant—an opportunity to work at a Sunday double
time pay rate.
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AWARD
The grievance is denied. The appropriate remedy in Ms. Drooker’s case is an opportunity to perform
“make–up” work at the Sunday double time pay rate at a time mutually agreeable to her and to the
Company.
Case 5
EMPLOYEES ON MEDICAL LEAVE
DISCUSSION
The decision of Arbitrator Davies, on which the Union has placed such heavy emphasis, makes the
entirely valid point that the “party relying on past practice assumes a heavy burden of proof of the
existence of the practice” (Joint Exhibit 4A, p. 10). And it is accordingly incumbent on the Union,
because it does so rely in the instant arbitration, to establish with something resembling certainty
the past practice that it alleges to be in existence.
The Union’s attempt to show this practice here is not by any means as barren as the
Company would have the arbitrator believe. The Union did, of course, stress the two facts noted by
Finally, the Union’s surprise when the Company unilaterally issued the dental plan interim
booklet with its “actively at work” eligibility requirement (Union Exhibit 4, p. 2) some time after
ratification strikes the arbitrator as having been quite genuine. It was, of course, this publication
and the Union’s belief that its eligibility provision contradicted what had been negotiated that
(together with the Davies award) triggered the instant arbitration.
In short, even denying persuasive powers to the Union’s argument regarding the New Jersey
statute (as the arbitrator must do because absolutely no meaningful showing of illegality has been
made by the Union), it is clear that the Union position is anchored to a variety of logical arguments.
Is this anchorage, however, sufficient to justify a conclusion that employees on medical leave
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It would appear to be absolutely true that medical leave people can have all of these benefits,
as the Union has contended, but only once they are back at work in order to qualify initially for
them.
Yet the automatic granting of the prescription drug plan in 1997 to employees on medical
leave also remains an established fact, and whatever technicalities have been mustered by the
parties differentiating new from improved versions of these benefits, it is difficult to see any
fundamental difference in nature between the prescription drug plan and the dental one.
Uncontrovertibly, those on medical leave got the prescription drug plan benefits while still on
medical leave.
requirement on the Union’s part that such an action conveyed.
And second, the Davies decision was hardly as supportive of the Union’s case as the Union
has suggested. Mr. Davies properly recognized that he had no authority at all to settle the question
involved in the instant arbitration (which he described as “the status of workers on Long-Term
Disability” but also presumably encompassed in his mind those on short-term disability as well). And
he specifically pointed out that “no discussion of the testimony regarding [this question] and no
inference the Arbitrator may draw from the testimony should be regarded as supporting a
determination of any of those issues” (Joint Exhibit 4A, p. 8). Despite the Union’s contention that his
decision “proved beyond any lingering doubt that employees on medical leaves . . . received all the
benefits by practice,” this arbitrator must conclude upon a conscientious and impartial reading of the
AWARD
Employees on medical leave as of January 1, 2001 are not covered by the Dental Assistance Plan.
The grievance is denied.
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Case 6
BLAME FOR A MAJOR ACCIDENT
DISCUSSION
Past practice at Austen appears to be nowhere as clear cut as the Company would like to make it.
With commendable frankness, Company president Lewis admitted in cross-examination that driver
Fox was actually fired because there were open liquor bottles in his vehicle. And, as the undersigned
arbitrator wrote both parties to this dispute when a procedural question concerning the testimony
relating to Cohene at the hearing was raised by the Union several days after the hearing, Mr. Lewis
stated in additional cross-examination that he could not remember whether or not he told the Union
when Cohene was terminated that the latter’s accident was the “culmination” of his (Lewis’) many
problems with Cohene. In addition, no one at the hearing seemed to be sufficiently armed with facts
about Cohene to dispel existing doubt as to whether he was Cohene, Jr. or Cohene, Sr.
cases that involve any of these employers warrant such consideration.
Of the five cases submitted by the Company, however, marked differences separating many
of the key circumstances there from the ones involving grievant Ramsey quickly become obvious. In
the three cases forming Company Exhibits 3 and 4, even disregarding the price level changes of the
intervening years (so that the M. K. Morris damage total of $3,500 in 1982 should more realistically
be viewed as some $11,550 in 2004 and the Eastern Freight Ways and Blue Comet Express 1986 and
1987 $2,500 figures as approximately three times these totals to measure them meaningfully against
Ramsey’s approximate total of $4,500), the Union is quite correct in asserting that—unlike here—the
discharged drivers had previously been involved in chargeable accidents. In Davidson Transfer, the
degree of damage could not remotely be said to be in the same ballpark as
Mr. Ramsey’s: the $12,100 in damages generated by grievant Spinelli in that case fifteen years ago
would exceed $37,000 now and arbitrator Hardy, explicitly, was at least in part governed by the
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Troop and Beverly Morgan) the grievants had additionally been found responsible for prior accidents
(six and three of them respectively). Only in the fourth case, Maislin Transport, was the discharge
sustained, and here not only did the damages amount to approximately $50,000 but also the
grievant’s “prior accident record” (a phrase that specifically appears in the decision) was apparently
quite persuasive in shaping the award. There may be other cases that might blunt some of the force
of these, but they have not been submitted in evidence.
Grievant Ramsey, by his own admission, was fully responsible for the March 8 “major”
AWARD
The Company did not have just cause to discharge Allan Ramsey. His discharge shall, effective
immediately, be converted to a 3-week suspension, without back pay.
Case 7
SUBCONTRACTING OF A PACKAGING LINE INSTALLATION
DISCUSSION
The language of Article XXXVII is precise and unequivocal, as the arbitrator views it. Under “normal
circumstances,” it straightforwardly says, the Company will not “subcontract the type of work which
is usually assigned to its regular employees” unless “skills and/or equipment are unavailable in the
Plant.” There is no such contractual ban if the circumstances are abnormal and even amid “normal
circumstances” the subcontracting can be effected if the required skills and/or equipment are not
available in the plant, but in any event the Company must “advise and discuss with the Chief
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There is no question that employment at Lititz did grow from some 350 or 360 people in 2001
to about 575 by mid-2003, with some 25 to 30 employees still to be added. Nor was Manager of
Human Resources Wagner’s testimony that before Rationalization I Lititz produced 98 million pieces
of consumer product goods but that this figure had dropped to 83 million in 2002 (on its way to the
69 million rate of 2004) while pharmaceutical production simultaneously grew from a zero base to 6
million pieces in 2002 (on its way to the current rate of 45 million pieces) even challenged by the
Union, let alone disproved. And these factors alone would surely give some credibility to the
Company’s contention that these were hardly “normal circumstances.”
discussing with the Chief Steward prior to subcontracting, cannot be dismissed so easily. Certainly,
there was no such discussion in the weeks or months immediately preceding the subcontracting of
the installation of the Lavacol Peroxide packaging line. And there is nothing in writing documenting
the alleged 2001 agreement between the Company and the then-Chief Steward that the former
would not have to notify the Union of subcontractors so long as the work pertained to Rationalization
projects—an agreement whose existence has been firmly denied by the Union. Indeed, as the Union
has pointed out in a post-hearing correspondence to the arbitrator (mailed October 6, 2004 and
received October 12, 2004, with notification and copies to the Company), even the minutes of the
Union monthly membership meetings for 2001 do not reflect the existence of such an agreement,
even though the then-Chief Steward, William Corcoran, testified that these minutes “would reflect
and support [that such an agreement was made].”
On the other hand, nothing made known to the arbitrator required that such an agreement be
reduced to writing. And it must be further pointed out that Mr. Corcoran actually testified, apparently
without any meaningful advance notice that he would be asked to appear at the hearing at all and
obviously in relation to an occurrence of some three years earlier, “I went to the membership and told
them what I’d agreed to. The minutes of that meeting should reflect what I said . . . . But no vote was
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AWARD
The grievance is denied.
Case 8
DISCHARGE FOR FRAUD
DISCUSSION
At the outset, the arbitrator must deny the Union’s argument regarding State of New Jersey
Workers’ Compensation legislation from having any standing in shaping his decision. Sections 34:15–
39.1 do indeed and quite explicitly make it unlawful for employers to discharge employees because of
the latters’ attempts to claim workers’ compensation benefits from such employers, but there is not a
shred of hard evidence that Mr. Sax was discharged for any reason but his alleged dishonesty. And,
Was Mr. Sax nonetheless discharged without just cause on the Company’s part?
The grievant does not by any means emerge as a model employee in this dispute. Undeniably
bright and articulate, his admitted failure to ask Dr. Rooney about working at Hunterdon and his
consistent concealment of this State School employment from both the doctor and the Company itself
misled and very possibly did so intentionally. His twice-offered explanation at the hearing that he
neglected to mention Hunterdon because, “I didn’t think it was important” can most kindly be