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CHAPTER 12: YOU BE THE ARBITRATOR
Alleged Theft of Company Property
1. As arbitrator, what would be your award and opinion in this arbitration?
The arbitrator considered the salient factor in deciding the fairness of the employer’s
discipline was whether it was reasonable for the employer to assume that the grievant
intended to steal the ladder. In determining it was not reasonable, she noted that the
2. Explain why the relevant provisions of the CBA as applied to the facts of this case dictate
the award.
3. What actions might the employer and/or the union have taken to avoid this conflict?
CHAPTER 12: EXTRA CASES
Arbitrability
Facts:
The City of Texas City, Texas, and the International Association of Firefighters reached an
agreement on a drug-testing policy for firefighters. According to the policy, the city may perform
drug or alcohol testing:
1. On any employee who manifests “reasonable belief” behavior
2. On any employee who has been involved in a work-related accident that involves
an injury to himself or to another while operating a vehicle or motor-driven or
heavy equipment
3. On a random basis of any employee who performs duties in a safety-sensitive
position
4. On any employee who is subject to drug or alcohol testing pursuant to federal or
state rules, regulations, or laws
During a dispatch to an alarm in a local apartment complex, Engine Driver B scraped an
unoccupied parked automobile. B immediately stopped and inspected the damage, which was
slight. Captain W called the police department and reported the incident. Both B and W located
the individual who owned the automobile and reported to her what had happened. The owner of
the automobile did not file a claim, and there was no liability to the city.
Later, Captain W was contacted by telephone by Fire Chief G, who ordered that B go
immediately to a drug-testing facility and submit to a drug test. Chief G had no firsthand
knowledge or information of the incident or of B’s work performance. B and W protested, but B
submitted to a urine test, which was negative.
Decision:
Arbitrator A. Dale Allen Jr. ruled that Chief G had no basis for ordering B to submit to a drug test
and that G did not properly interpret and apply the drug-testing policy. The city and Chief G were
ordered to adhere to the terms of the drug-testing policy in the future.1
Questions for Discussion
1. Do you agree with the arbitrator’s decision? Why or why not?
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2. Deciding the “arbitrability” of an issue is, in fact, an arbitration. What do you think about
an arbitrator deciding he or she has the authority to decide a case?
Outsourcing of Work
Facts:
ABC Railcar Services repairs railcars. The labor agreement between the company and its union
includes the following management rights clause.
ARTICLE 21.1—MANAGEMENT
The management of the business and the direction of the working forces, including
but not limited to the right to plan, direct and control plant operations; to schedule
the working hours, lunch and rest periods; to determine employee qualifications; to
hire, transfer, and promote employees, to suspend or discharge employees for
cause or to relieve employees from work because of lack of work or for other
legitimate reasons; to establish reasonable production standards; to require
employees to work when directed; to make and enforce shop rules and regulations;
The company reserves the right to determine how, where, and by whom its work
shall be performed, provided that in the case of contracting out work then being
In June 1996, ABC subcontracted the work of mowing grass at its manufacturing facility
to “outside contractors.” In August 1996, ABC hired three outside contractors to work as safety
observers. A safety observer works outside a confined area and observes the employees who
work within the confined area. Working in a confined space such as inside a “tank” or “hopper”
railcar becomes hazardous when the oxygen content of the space goes below a certain level. Also,
dust, odor, and flammable or explosive gases can create a hazardous condition. In the past, the
Decision:
A prevailing principle in every collective bargaining agreement is the duty of reasonableness and
good faith of the parties. Thus, a company cannot bargain with a union over jobs regularly
assigned to its employees and contract out those same jobs solely for the purpose of saving
money, thereby subverting the labor agreement or seriously damaging the bargaining unit.
Furthermore, Arbitrator Nolan in Uniroyal, Inc. (76 LA 1049 [1981]) stated that:
The union’s claim of past practice falls short in proving their case. Although bargaining
unit employees have in the past performed the tasks of cutting or mowing the grass and acting as
such work is reserved to the company.
In summary, the union’s grievance must fail because the union has not carried its burden
of proof to show a contractual violation. The union asks this arbitrator to imply too much. Given
the clear language to the parties’ collective bargaining agreement, the company has acted
reasonably and in good faith. This arbitrator, however, notes the union’s concern regarding the
extent to which the company will contract out work. The union should realize that the language in
a collective bargaining agreement is developed by the parties at the bargaining table. Also as
Arbitrator Hart in Continental Fibre Drum Inc. (86 LA 780 [1986]) stated: In labor relations the
opposite of love is not hate but fear—as is apparent when a union fears for its job security without
fully appreciating that the best job security is with a successful, money-making company. 2
Questions for Discussion
1. Do you agree with the arbitrator? Explain your answer.
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2. Can you suggest a better argument that the union could have used?
Gardner-Denver
Facts:
The grievant, an African American, after being discharged, filed a grievance under a collective
bargaining agreement that contained a nondiscrimination clause. Prior to arbitration, the grievant
also filed a racial discrimination complaint that was referred to the Equal Employment
Opportunity Commission (EEOC). The arbitrator ruled that the grievant was discharged for just
cause, and the EEOC determined that there were no reasonable grounds to believe that a violation
of Title VII of the Civil Rights Act had occurred. The grievant then brought action in the U.S.
District Court alleging that his discharge resulted from a racially discriminatory employment
practice.
Decision:
The district court held that the grievant was bound by prior arbitral decisions and had no right to
sue under Title VII. The Court of Appeals affirmed, but the Supreme Court reversed, holding that
an employee’s statutory right to a trial de novo under Title VII is not foreclosed by prior
submission of his claim to final arbitration. From the standpoint of arbitration, footnote 21 in the
Supreme Court’s decision is its most controversial element because it specifically raises the
specter of judicial review. The Court said:
We adopt no standards as to the weight to be accorded an arbitration decision,
since this must be determined in the court’s discretion with regard to the facts
and circumstances of each case. When an arbitral determination gives full
consideration to the employee’s Title VII rights, a court may properly accord it
great weight. This is especially true where the issue is one of fact, specifically
addressed by the parties and decided by the arbitrator on the basis of an adequate
record. But courts should be ever mindful that Congress thought it necessary to
provide a judicial forum for the resolution of discriminatory employment claims.
It is the duty of the courts to assure the full availability of this forum.3
Questions for Discussion
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1. The primary reason for including a grievance process in a collective bargaining
agreement is to provide the parties with a means to resolve disputes that arise under the
terms of that agreement. If someone has been discriminated against in violation of federal
law, even if the contract contains an antidiscrimination clause, should he or she be
required to process this complaint through the grievance procedure?
2. The conservative nature of the current Supreme Court has led court observers to believe
that the Court might change its prior ruling under this case and require claimants to
process their discrimination charges through the grievance procedure. What do you
think?
Arbitrability
Facts:
Most grievance procedure clauses of collective bargaining agreements provide time limits within
which each step must be accomplished, and they usually state that any failure of the union to
proceed from one step to the next means that the company’s last answer to the grievance is
accepted. An attempt to revive a lapsed grievance may then be rejected, not on the merits of the
complaint, but on procedural grounds.
A difficulty sometimes arises, however, when a grievance alleges a continuing violation.
When the claim is that men are being worked regularly out of their classification, or that they are
not getting the proper rate for their work, it might be argued that the basis for a new grievance
arises every week. Whether that argument has merit depends, of course, on many circumstances.
One such case arose during the summer of 1965 at a tractor and agricultural implement
manufacturing plant. A few months earlier, three grievances, each filed by an employee who
claimed he was entitled to a 20-minute paid lunch period and that he wasn’t getting it, were
processed through the fourth step of the grievance procedure without a settlement. The union
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notified the company of its intention to send the grievances to arbitration, but it let the contractual
time limit (five days) go by without taking that action. There was no excuse for the delay, and the
union acknowledged that the language of the agreement (“A grievance must be appealed to
arbitration within the time limits … or the grievance shall be considered settled on the basis of the
last answer given”) stood as a barrier to arbitration. Nevertheless, management was asked to
overlook the delay. Management refused, and the matter was dropped for the time being.
About three months later, the same employees filed grievances again on the same issue,
and when the union tried to press them to arbitration, the company contested. “Those are stale
grievances,” the industrial relations director asserted, “and we don’t have to defend ourselves on
the merits before an arbitrator. The contract contains time limits to compel the union to move
expeditiously. They shouldn’t be permitted to evade the contract by the simple expedient of re-
filing the same grievances.”
“The time limits don’t apply in a situation like this,” the union attorney answered,
“because the violations are of a continuing and recurring nature. Every time these men are
deprived of a paid lunch period, a new cause of action arises. The contract has a cutoff date for
back pay and if this grievance is upheld, the company won’t have to compensate the grievants for
their losses back to the earlier grievances. But that’s the only limitation on their right to correct
the contract violations.”
The conflicting views of procedural arbitrability were argued before an arbitrator, and he
finally retired to consider this threshold question.
Decision:
The company was upheld. The arbitrator pointed out that the new grievances were not
significantly distinguishable from the earlier ones. He wrote: “The obvious purpose of the filing
of the second set of grievances was to reinstate in the grievance procedure the disputes covered
by the first set of grievances.” Although the situations complained of were continuing in nature,
and although the cutoff date for back pay would be later under the second grievances than under
the first, this was not enough to make the second grievances identifiably separate from the first.4
Questions for Discussion
1. It seemed to be a fact in this case that the second set of grievances was identical to the
first. Might the arbitrator have held them arbitrable if they were slightly different?
2. If the union is foreclosed from carrying a certain issue to arbitration because it had once
let a time limit lapse, it may result in some employee getting less money or fewer benefits
than the contract calls for. In view of this apparent injustice, do you think the arbitrator
should have decided the other way?
3. In view of the short time limit and the possibility that a lapse might foreclose the union
from arbitrating important issues, would it be wise from the union’s point of view to
4 Reprinted with permission from Morris Stone, Labor Grievances and Decisions (New York: American Arbitration
Association, 1970) p. 197.
phrase every grievance as narrowly as possible so that the outcome of the case will apply
to the individuals named and to no other? Would there be any disadvantages, from the
union’s viewpoint, of this policy?
4. Some grievances involve individuals and relatively small matters. Others may deal with
important policy considerations that affect the whole workforce. Do you think that
grievance procedures might establish different kinds of time limits for different types of
grievances? How would you provide for this in contract language?
Governor’s Holiday
Facts:
A contract with county employees specified paid holidays and agreed to celebrate as holidays
“such other days as the Governor may designate.” The Governor proclaimed Monday, July 3, as a
holiday for state employees. The union expected county employees to also have a holiday
because of the contract language. The county officials disagreed stating that the clause referred to
holidays the Governor might declare for the entire population of the state. The union grieved and
the holiday date passed with county employees reporting for work as usual.
Decision:
Although the arbitrator agreed that the contract language did not clearly state the intentions of the
parties, he ruled in favor of the union. Because the date had passed, he devised a remedy by
granting employees a day off as a holiday in the future. The parties were to meet and mutually
decide on the day for the holiday. If they couldn’t agree, the county would be allowed to
designate the day taking into account employees’ wishes and convenience as much as possible.5
Questions for Discussion
1. Do you think an arbitrator is better equipped to resolve a case like this than a judge?
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2. Can you suggest language for the contract that would give the union what it felt it had
agreed to?
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CHAPTER 12: EXERCISE AND EXERCISE GUIDANCE
Use of the Arbitration Process
Purpose:
To enable students to learn how the arbitration process is being utilized in the areas outside of the
labor relations field.
Task:
Using the library, Internet, and other reference sources, identify three fields outside labor
relations in which the arbitration process is utilized. Write a two- or three-paragraph summary