Chapter 4 Qualifications A All Cases Involving Transfer

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ADDITIONAL ARBITRATION CASES

As did the sixteen cases presented in the body of the textbook, the eight arbitration cases that follow are

drawn from my own experiences. As was true of the previous cases, too, all are presented as they

actually took place, with only (much of the time) the names of individuals and—sometimes—dates

changed.

In each of these eight situations (all of which I found particularly interesting) students

should once again decide what they would have ruled, based on the facts as presented, had they been

the arbitrator, and why they would have so ruled. They should once again be reminded that no

Case 1

THE SEVERELY BLEMISHED RECORD OF A MIDDLE SCHOOL TEACHER

The Issue

Was Daniel W. Burrell suspended and then dismissed for just cause?

If not, what shall the remedy be?

Background

On Thursday morning June 8, 1999, while his school was in session, white Peters Middle

School science teacher Daniel W. Burrell took from his briefcase a sheet of paper entitled “Jesse

Jackson’s White Friends Quiz.” The document, which had apparently been placed there a day or so

earlier by an unknown person, contained 40 questions and answers which were highly demeaning to

blacks. The first three of these were:

1. What are the three best years of a nigger’s life? (Second grade);

2. Why do niggers smell? (So blind people can hate them too);

3. What do you call a nigger with half a brain? (Gifted).

The word “nigger,” indeed, appeared 30 times in the 40 questions and answers.

Mr. Burrell then, using the school copying machine located in the Xerox room next to the

school lounge, made copies of this sheet of paper and gave one copy to each of three fellow white

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early August, with the black community very upset, there were street demonstrations protesting the

retention of the teacher who had originally distributed the document (and whose identity was still

unrevealed to the public) at Peters. In early August, a variety of not-always-accurate articles about

the original incident and subsequent events started to appear in both the city’s Daily Local News and

The Philadelphia Inquirer.

Contractual Language

*

ARTICLE II

VESTED BOARD AUTHORITY

2.02 The operation and management of the District and the direction of its staff

are vested in the Board in accordance with the Pennsylvania School Code

ARTICLE XII

TEACHER’S RIGHTS

12.01 No bargaining unit member shall be disciplined, reduced in rank or

compensation, or deprived of any professional advantage without just

cause. . . .

Position of the Board

The School Board takes the position that Mr. Burrell’s actions in possessing, copying and

distributing the “hate sheet” which “abounded in statements of racial prejudice and was apparently

written for the express purpose of fomenting racial strife” (Board Post-Hearing Brief, p. 8) violated

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Comm. 193, 515 A. 2d 1027 (1987), aff’d, _____, Pa. _____, 548 A. 2d 1194 (1988) in support of this

argument on its part (Ibid., p. 6).

Mr. Burrell’s June 8, 1999 actions alone therefore warranted his dismissal, says the Board.

But the Board also argues that “the added fact” that the grievant “has repeatedly lied under oath

before the arbitrator . . . utterly destroys his credibility and acts to further condemn him” (Ibid., p. 18).

In support of this latter contention, the Board asserts that although Mr. Burrell claimed that

he only became aware of the “hate sheet” and its importance when his wife brought it to his

attention on the evening of June 8 after he returned from work (or when it was too late for him to

Position of the Union

In sharp contrast, the Area Education Association contends that there was not just cause for

the Burrell termination. The Board’s action was, the Union declares, unsupported by the evidence

and the law. Consequently, the Union argues, the grievant should be reinstated with back pay and

without loss of any employment advantage.

In the view of the Union, the grievant’s conduct regarding the “Jesse Jackson’s White

Friends Quiz” document on June 8 was “nothing more than an act of absence–minded [sic] negligence

or carelessness” (Union Reply Brief, p. 48), “brought about by what could at worst be characterized

as a casual attitude toward a document which a brief perusal had suggested was intended to be

humorous” (Ibid., p. 47).

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It asserts that not a single fact witness of the many who testified indicated to the arbitrator

that there was any basis to believe that Mr. Burrell was prejudiced, racist or bigoted in any manner

whatsoever and that the record, on the contrary, showed a wide variety of instances and occasions

wherein Mr. Burrell demonstrated a special sensitivity to the needs of minority members.

The Union notes further that every person—including, again, employer witnesses—who was

asked to testify as to their knowledge of the grievant’s reputation for being truthful and honest

indicated that he had the most enviable of reputations in this regard. And the employer’s efforts to

cite examples of Burrell’s alleged dishonesty are indeed, declares the Union, “feeble.” The grievant

did, in fact, tell the entire truth in all instances as the Union views the situation: he truly did not

Discussion

At the outset, the arbitrator must point out that he has no doubt that he does indeed have

the authority both to uphold Mr. Burrell’s dismissal and to impose either a lesser penalty or none at

all in lieu of dismissal should he find one of these latter courses of action to be justified by the facts.

As the Union has argued, the record alone leads to this conclusion and it does so, in my

opinion, quite convincingly. Not only on December 14, 1999, but also six days earlier, I stated this

latitude as being embraced by my mandate as I understood it. And even though the transcription

was obviously not an entirely faithful reproduction of my words in either case, the record on this

matter is not mysterious.

From the proceedings of December 8, 1999:

THE ARBITRATOR: . . . We are ready to start the third day

of this hearing or the third hearing, as the American Arbitration

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counsel here argued that: 1) the Pennsylvania Unemployment Compensation Board of Review

referee’s decision mailed two days earlier (or on December 12, 1999) affirming the original Office of

Employment Security decision that Mr. Burrell was also disqualified as a claimant because he, too,

had been guilty of willful misconduct (a decision that the School Board’s counsel had argued was

totally germane when taken in conjunction with Frederick) was now being appealed by the Union; 2)

the instant arbitration is not controlled by the Pennsylvania Consolidated Statute governing

Frederick; and 3) Frederick is an implied contract case, unlike the current situation where a

collective bargaining agreement exists. The Union counsel, the arbitrator and the Board counsel had

then respectively asserted:

MR. SCOTT. . . . My position is the arbitrator is fully

possessed of authority, even upon making a finding that some

Mr. Stebbins’s response, while a creditable reinforcement of his prior collateral estoppel

argument, hardly constitutes a meaningful attempt by the Board counsel to dispute either the

Union’s just–stated position regarding the arbitrator’s mandate or the arbitrator’s agreement with

the latter—unless one believes that the entire instant arbitration should be mechanically controlled

by combination of Frederick and the Unemployment Compensation unit’s finding that Mr. Burrell

was guilty of willful misconduct.

Unfortunately for the Board in this regard, the latter belief flies in the face of essentially all

arbitration practice. As the authors of the most authoritative work in the field have phrased it—

citing a host of arbitration decisions made over the years by eminent arbitrators by way of

illustration—“the conclusions and actions of state unemployment compensation commissions have

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Union counsel, who has drawn copiously from the research of these two scholars for his Reply Brief,

fully realizes. Presumably, the equally sophisticated counsel for the Board is also anything but

oblivious to this circumstance.

Nor, finally, can the Board’s arguments that both the Duquesne School District decision of

Arbitrator Elliot Newman and Musser v. County of Centre prevent a modification of the Burrell

discharge, should I find a penalty less than dismissal to have been justified, be granted persuasive

powers here. Duquesne is hardly analogous, since the arbitrator there found that the short

suspension imposed by the employer School District stemmed from the exercise of “reasonable

reaching such a conclusion.

It also flies in the face of all logical inference to hypothesize that the grievant thought that

the remaining 95 percent of this 40-item page was any different in its racist thrust. It might be

theoretically possible to be so completely oblivious to the remaining 38 questions and answers on the

same page as to not recognize at all that the word “nigger” permeates the sheet from top to bottom

and to believe that the anti-black invective ceases with item #2. But it is so highly improbable as to

warrant dismissal as a credible proposition here. Mr. Burrell, in my opinion, had to have been aware

at some level of understanding that the items that he did look at were quite representative of the

items that he did not see.

In proceeding to copy the sheet, most especially as a teacher within a school building

containing both black and white students and while school was in session, the grievant therefore

displayed both exceedingly poor judgment and negligence in his duty. In distributing copies to three

Hearing Brief, p. 8).

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It is by no means as clear to me, however, that the grievant also, as the Board has contended,

“repeatedly lied under oath before the arbitrator” so as to “utterly” destroy his credibility and further

condemn himself (Ibid., p. 18).

In support of this latter assertion, the Board has, of course, advanced five alleged examples

of Mr. Burrell’s dishonesty, pertaining respectively to: 1) the grievant’s initial awareness of the “hate

sheet”; 2) Burrell’s alleged misrepresentation as to how much of the “hate sheet” he had read; 3) an

alleged lie by the grievant in testifying that he had made the copies only to take home when in fact

he clearly planned to distribute copies at the school in accordance with the standard school custom

regarding joke sheets; 4) a Board contention that the grievant misstated how many copies of the

sheet he had made in acknowledging only two when in fact he had made at least three; and 5) Mr.

Burrell’s mischaracterization of Gilbert Judson as having been a “black friend” of his when Judson

was something less than a “friend” by the latter’s own sworn testimony before the arbitrator.

I have conscientiously considered each of the five subjects and in all cases have found the

required quantum of clear and compelling evidence that is necessary to support such a serious

charge to be wanting.

First, the Board’s assertion that the grievant “claims that he only became aware of the ‘hate

sheet’ and its importance when his wife brought it to his attention the evening after he returned

from work” when in fact the uncontradicted testimony of Mr. Abbott established that Mr. Burrell

was aware of the sheet before school had concluded on that same day is not supported by the record

made at the hearing. The transcript on the contrary reveals that Burrell readily admitted that he

“glanced” at the sheet (Transcript, p. 1138) while still at school during the day and did see the word

nigger when he glanced” (Ibid., p. 1139). His declaration that he recognized the sheet as containing

some “very tasteless jokes,” lacking in humor (Ibid., p. 1138), only after a fuller reading on his part

once he was home, whatever it may say about the grievant’s naiveté and reading comprehension,

hardly constitutes the “demonstrable lie” that the Board would have the arbitrator interpret it as

being.

Webster’s Ninth New Collegiate Dictionary (Springfield, Mass.: Merrian-Webster, Inc., 1987), p. 519.

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grievant that has been offered by the Board has been patiently scrutinized by a careful reading of the

record, and been found to be lacking in persuasive power. Despite the presumed sincerity and depth

of feeling behind the Board’s charges here, there is no meaningful evidence at all that the grievant

did in fact lie to the arbitrator, in so doing destroying his credibility.

By no means, on the other hand, does this last conclusion serve to detract from the

seriousness of Daniel W. Burrell’s June 8, 1999 offense itself. In copying and distributing the sheet of

racist remarks, the grievant fell far short of the standards that his employer could justifiably expect

of him, with no excuse at all for his actions. Far from being the “epitome of an excellent educator” on

the morning in question, he behaved, however unpremeditated and impulsive his conduct may have

been, so as to shame his profession.

The record was, of course, severely blemished on June 8, 1999. But it was tarnished by a

single set of actions, actions that were patently very much out of character on the part of the person

who committed them and that Mr. Burrell quite obviously now deeply regrets. The behavior would

appear not to have the slightest prospect of being repeated. Accordingly, while the grievant blatantly

violated his moral responsibilities as a teacher (as well as the anti-racism policy of his employer) on

the one date in question, I cannot agree at all with the Board, given the full Burrell record and not

just the single day of shame, that the grievant “lacks the moral quality necessary to teach” (Board

Post-Hearing Brief, p. 6).

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Case 2

DENIAL OF FOUR HOURS OF PAY

The Issue

In the circumstances giving rise to this dispute, were the

grievants Thomas J. Hines and Frank C. Partridge improperly denied

four hours of pay each?

Background

On Monday, March 10, 1995, the two grievants — together with four other stores clerks —

Contractual Provisions

Relevant to this arbitration are the following provisions of the 1993–96; Labor Agreement:

ARTICLE III

SENIORITY

(a). New employees shall be on a thirty (30) working day probationary period during which

time they may be released without recourse to the grievance procedure.

(b). Seniority shall be determined by length of service with the Employer except for

employees transferred into the bargaining unit after the effective date of this Agreement in

which case seniority shall commence on the date said employee begins work at King of

Prussia. In the event any employee covered by this Agreement accepts a position outside

ARTICLE VI

REPORT IN ALLOWANCE

An employee who reports for work at his regular starting time and who has not been notified

by the Company not to report shall receive four (4) hours pay or work at his straight time

rate for the job he was scheduled to perform. If his regular work is not available, he must

work at such tasks assigned to him by his foreman to be entitled to such pay under this

section. (To be guaranteed eight (8) hours work.)

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The provisions of this section shall not apply in the event that strikes, work stoppages in

connection with labor disputes, failure of utilities beyond the control of the Company, or Acts

of God interfere with work being provided.

ARTICLE XVI

WAGES AND HOURS

(a) All employees shall receive wage increases as follows:

All storeclerks Eff. 4/17/93 4/17/94 4/17/95

.95 .95 .95

Position of the Union

The Union contends that Article XVI (f) guarantees that any employee who punches his time

card for work on a given day is to be provided with eight hours of work.

It argues that had the Company, confronted with work not being available, not allowed the

men to punch their cards on the day in question it would only have been liable for four hours’ pay to

each man, under Article VI. This Article, the Union asserts, was put in the Agreement to protect

employees who report to work without notification by the Company not to come in and who have not

Position of the Company

Above all, the Company contends that the Agreement has no guaranteed work day and for

the arbitrator to hold that there is one there would have to be a specific spelling out of such a

guarantee, as there is in the case of Article XVI (d), pertaining to Sunday work.

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Article VI, says the Company, was specifically negotiated to cover such situations as this. It

interprets that Article as dictating that, when there has been no prior notification not to report for

work, the Company must pay 4 hours’ pay or provide 4 hours of work, a condition which it has met in

this case.

Further, declares the Company, in eleven years at the King of Prussia location there had

Discussion

Certain of the arguments on both sides, while doubtless presented with sincerity at the

hearing, can be dismissed as not having a bearing on the resolution of this dispute.

The fact that only two of the six men sent home chose to grieve, while other, in some cases

more senior, workers did not register grievances, may well support the Company’s argument that the

Union’s case is unfounded. But the failure of the other four to lodge objections could just as

conceivably be due to apathy on their part, to a desire not to incur the Company’s displeasure, or to

any number of other reasons. From the information offered in evidence, the arbitrator is in no

position to interpret this percentage-of-workers-who-grieved statistic and thus cannot attach weight

to it.

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at all up until shortly before 12 noon on the very day of curtailment is what has triggered this

dispute.

Finally, the assertions of both sides as these pertain to Article VI also do not face the issue to

be decided here in anything but a manner that is at best indirect. To the Union, Article VI does not

apply at all, because the men did report to work (i.e. punched their time cards for work), and it could

only be applied had the Company prevented the employees from punching in. To the Company, it

does apply and the Company has honored it by providing four hours of work on the day in question.

Despite the several arguments advanced by each party, then, this case boils down to an

interpretation of Article XVI (f) and whether or not its language guarantees, as the Union claims,

As the representatives of both parties are well aware, being experienced labor relations

practitioners, in interpretative cases such as this one, where the language itself can be safely said to

be ambiguous, there are certain areas that arbitrators invariably look to for guidance in deciding the

true intention of the parties. Perhaps chief among these are past practice, the contractual history

between the parties, industry practice, prior settlements of related grievances, informal

understandings, and the desirability of avoiding overly-harsh or nonsensical results. But these and

all other meaningful guides are conspicuously lacking in the instant case, with one exception.

The single exception involves the commonly-used principle, well worn in its application by

arbitrators to cases such as this one, that to expressly state one or more exceptions is to indicate

that there are no other exceptions: to specifically include some guarantees in a written contract is to

exclude other guarantees.

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Award

The grievances of Thomas J. Hines and Frank C. Partridge are denied. The Company did not

improperly deny them four hours of pay on March 10, 1995.

Case 3

THE DISCHARGE OF STEPHEN P. DOWNES

The Issue

Was there just cause for the discharge of Stephen P. Downes? If not,

what is the appropriate remedy?

Background

At 7 a.m. on July 13, 2008, Stephen P. Downes, regularly a packer in the Rotogravure

Department at the Company’s Trenton, New Jersey plant but assigned to work in the Value Floor

Pack area that day and week since Rotogravure was closed, punched in for work and eight hours

Position of the Company

In the eyes of the Company although Mr. Downes knew full well that he had been assigned

to the Value Floor Pack area and conceded that he had been working there on assignment on both

July 10 and July 12, he never reported to that area on July 13, as was his responsibility. He was not

Position of the Union

As the Union views matters, Downes was terminated strictly through Company ineptness.

He performed duties in the plant all day long and was completely available to the Company had only

it tried to find him. In fact, he showed some initiative when his co-workers did not appear by going

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Discussion

The grievant without question had what the Company representative in his closing

statement deemed a “not exemplary past record,” but a conscientious and detached assessment of

this record hardly places Mr. Downes in the category of blatant violators, either.

His 3-day May suspension for excessive absenteeism was indeed expunged as a product of

the general agreement between the parties. And not only did he hear absolutely nothing from the

Company regarding the three other specifics cited in the Company’s July 18 termination letter to

him until the issuance of this letter itself, but he also could reasonably explain his behavior in all

had every reasonable right to expect of all of its employees under the circumstances.

Whether he was guilty of more wrongdoing than this must forever remain unknown,

although Downes’s total invisibility to supervisors and co-workers (at least as judged by the utter

absence of corroborative witnesses) certainly does nothing to strengthen the Union’s case that the

grievant “performed duties in the plant all day.” If he showed initiative “by going out and sweeping

even outside of his assigned Value Floor Pack area,” this initiative was apparently a well-kept secret.

In any event, however, his whereabouts need not have remained such a mystery. The

Company’s employee paging system, whose customarily frequent utilization to summon employees

was noted by all but one of this arbitration’s seven witnesses, was—quite surprisingly in hindsight—

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Award

The Company did not have just cause to discharge Stephen P. Downes. He shall be

reinstated effective immediately, but without any back pay, benefits or seniority, and given a three–

day suspension in lieu of the original termination.

Case 4

THE NON-PROMOTION OF A MECHANIC

The Issue

Was the Company justified in not promoting Calvin C. Cox, Jr. to

Technician? If not, what is the appropriate remedy?

Background

On November 2 and 3, 2005, four Company employees bid on a promotional opportunity to

Relevant Contractual Language

ARTICLE 6

Seniority, Vacancies, Reassignments, Layoffs, and Discharges

6.1 Definition of Seniority

Company seniority is defined as the length of continuous

6.5 Qualifications

(a) In all cases involving transfer, promotion, or

demotion, Company will give full consideration to

group seniority in the bargaining unit, but equal

consideration will be given to fitness, ability,

6.6 Company to Judge Qualifications

Company shall exercise the authority of judging

6.7 Posting of Vacancies

Whenever a bargaining unit job opening occurs in an Area,

6.8 Trial Period After Promotion

An employee promoted to a higher job classification will be

given instruction and training in the work of his new classification

Job Description for Technician

TECHNICIAN

A Technician is under limited general supervision and is highly

proficient and qualified by training and experience in all areas of

Construction and Maintenance work. The Technician shall be highly

skilled at the duties of Mechanic III. The Technician may be called

upon to perform any other work as directed.

Position of the Union

In the eyes of the Union, the successful bidder Bixby may or may not have been better

qualified than the grievant for a Technician’s position, but this is absolutely irrelevant. The Labor

Agreement, the Union argues, sets forth the agreed-upon promotional criteria very clearly and the

last sentence of the pivotal Article 6.5(a) commands only that for group seniority to govern two