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MARQUETTE LAW REVIEW[l
the published cases are unrewarding at best, and usually frustrating and divisive in addition. This is true for several interrelated reasons. Some of them follow: First: There is no objective standard against which matters of arbitration practice can be measured. True, the laws of the various states provide some regulation, but this is restricted principally to substantive matters, such as enforcement of agreements to arbitrate and the ensuing awards. Little attention is given to matters of procedure before the arbitrator, and that little concerns itself with situations of fairly grievous misconduct of the arbitrator, rather than with comparatively minor points of procedure. As a result, in those very few cases the courts have jurisdiction to review, if there is a question of procedure, it will be something like, "Did the arbitrator unlawfully refuse to hear relevant evidence ?" rather than, "Did the arbitrator err in ruling that the burden of proof rested on the employer?" or "Did the arbitrator err in ruling that the employer was obliged to open the case ?" In the latter instances, the court simply has no power to review, since nothing in the arbitration statutes or in the common law prescribes any standards for the arbitrator to follow. Second: Since there is no legal standard imposed on the proceeding, the parties are free to devise any procedural scheme they wish, so long, presumably, as it is not grossly unfair to one or the other. For example, it is not unheard of for parties to submit a dispute over the telephone, the facts being stipulated and the conversations being limited to argument. 2 Another example of a situation in which the parties have worked out a somewhat unusual procedure between themselves is the one currently in effect between Chrysler Corporation and the UAW. Disputes between these parties are decided by the Umpire based on written statements of witnesses and the arguments of the parties. The Umpire never sees a witness nor does he ever view a shop operation.3 In other instances, an arbitrator may find, depending on the nature of the relations between the parties, that he has been called in as a sort of consultant and that he is expected to render his decision after a round table discussion of the problem, rather than a formal hearing. In short, the rules of the game are going to vary a great deal, depending on the expressed, or, more often, implied desires of the parties themselves. Third: In the majority of cases, however, the parties are likely to come to the hearing without a clear idea of what procedure they want followed, or will come in disagreement as to what it should be. The
2Cf., 2 Arb. Magazine (May-June, 1944) p. 27. 3This unique procedure is fully described by Wolff, Crane and Cole, The Chrysler-UAW Umpire System, The Arbitrator and the Parties, pp. 111-141 (BNA: 1958).
arbitrator, in such cases, bears the responsibility of clearing the way of the procedural roadblock and getting on with the case. He may be obliged to direct one party or the other to open the case; to sustain or overrule an objection to certain evidence (being ever conscious of his legal obligation to hear all relevant evidence); to direct a party to prove contested assertions by witnesses rather than through unsupported statements of its representative; or to accept or reject an exparte affidavit in lieu of oral testimony. He may be required to resolve a myriad of different kinds of procedural issues before he can reach the principal dispute in the case. As pointed out above, there are no legal standards for deciding the great bulk of these problems. As a result, the arbitrator is left to his own devices in composing the difficulty before him. He may decide the issue based solely on what seems fair at the time; he may decide the issue based on what seems most expedient; he may even decide the issue based on which party seems least likely to be offended by an adverse ruling. In any event, it seems clear that there will almost inevitably be divergent handling of the same kind of problem by different arbitrators in different situationsor even by the same arbitrator with different parties. When to this is added the fact that many arbitrators are lawyers, and take great comfort in handling such disputes in accordance with analogous rules of civil or criminal procedure, and the fact that many arbitrators are not lawyers and are not at all impressed with the analogy (together with the fact that some lawyer-arbitrators abhor legal terminology and legalistic approaches to arbitration, and some non-lawyer-arbitrators delight in it), the picture becomes even more cloudy. All of this is stated not in criticism of the seeming many-headedness of the arbitration profession, but in support of the proposition that a study of arbitration procedure is fraught with difficulties and dead-end alleys. Numerous other difficulties could be demonstrated; but it seems fairly apparent that discussion of arbitration procedure in general terms must rest on the faulty assumption that there is, or should be, uniformity and regularity in arbitration practice. This is patently not so. It seems quite inappropriate to attempt to discuss the telephone arbitration and the consultation arbitration mentioned above and other situations equally unique in terms of burden of proof, rules of evidence and the like. On the other hand, in perhaps the great majority of cases, the parties expect the arbitrator to act in a judicial manner. He is called in as a quasi-judge; he sits in a central position; he listens to opening statements and closing arguments; he hears the examination and cross-examination of witnesses and participates therein himself; he is confronted with objections and motions; he may have the benefit of a transcript made by a court reporter; he may, perhaps, receive post hearing briefs. He decides the issue, usually a legal one of whether
MARQUETTE LAW REVIEW
[ Vol. 43
there has been a violation of the collective bargaining agreement, based on the evidence before him. It is with this latter kind of more formalized arbitration that this paper intends to deal, in the belief that the similarities of the proceeding to trials by the court witihout a jury, and hearings before administrative tribunals, are sufficient to warrant the use of some of the techniques of these latter, developed through hundreds of years of experience, at least to the extent that their application is profitable. What will be said in this paper is not intended to relate to situations in which the agreement or practice or understanding of the parties compel different conclusions. Much emphasis will be placed, in this paper, on similarities with and differences from court procedures in the handling of specific problems. This will be done, not in advocacy of wholesale application of court procedures to the arbitration forum, but in the belief that there is much to be learned from the techniques of these judicial bodies, much more, in fact, than should be discarded because of "the law's delays" and useless technicality. Furthermore, there seems to be recognition by many of the leaders in the arbitration profession that such is the case; indeed, many, many reported cases show a conscious and unequivocal reliance on analogous rules of judicial procedure. Those cases concerned with this problem as it relates to the "rule" of burden of proof will be discussed in this paper. II
BURDEN OF PROOF?
Before we can make an adequate study of the use and utility of burden of proof in labor arbitration, we must have a fairly good understanding of what we are talking about. Since the courts constitute the forum in which the doctrine was formalized and is now most frequently used, they are without doubt the most logical source to consult in order to determine what burden of proof is. After determining what the courts and legal writers think burden of proof is and how it works, we will be in a better position to study the use of the rule and its validity in the arbitral forum. The term "burden of proof" is used in at least two senses in court proceedings. Strictly, it is the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause. 4 Differently phrased, it is the "duty resting upon one party
or the other . . . to establish by a preponderance of the evidence a
proposition essential to the maintenance of the action." 5 However, the term is frequently used to denote the "necessity which rests upon a
4 Willett v. Rich, 142 Mass. 356, 7 N.E. 776 (1886). Kohlsaat v. Parkersburg and Marietta Sand Co., 266 Fed. 283, 284 (4th Cir.
1920). It should be noted that the rule relates only to questions of fact, not to questions of law. Wieger v. Mutual Life Ins. Co., 205 Wis. 95, 236 N.W.
E.S. 11 Donovan v. however.'. Kohlsaat v. 7 For an example of the difference in the effect of burden of proof as distinguished from "burden of proceeding with the evidence" or "burden of evidence".H. Hunt v. 195 P. as determined by the pleadings or the nature of the case. 12 Clapper v. Cloutier..2 Some courts regard them as involving substantial rights of a party. to exceptions. the "burden of proceeding". Arb.." in the sense above described. United States. Miller v.R.E." 6 This latter duty is more correctly referred to as the "burden of the evidence". or overthrow one created against him. 295 Ill. see Rutland Ry.. 493. 123 S. 85 (1915). e. 173. 90 Vt. subject. 668 (1910). it rests upon the party who will be defeated as to either a particular issue or the entire case if no evidence relating thereto is adduced by either sidef This is to be distinguished from the "burden of evidence" or the "burden of going forward with the evidence" which may shift from side to side during the progress of the trial. Lyon. 165 Kan. Standard Accident Ins.. a person unfamiliar with the jargon and tradition of 534 (1931). 10 Scheinman v.'" The location of burden of proof in the latter sense is controlled by the logical necessities of making proof. the burden being always on that party against whom the decision would be rendered if no further evidence were offered." More particularly. 482. Williams. 343 Mo. 435. Eure. Co. 1 (1920). There appears to be some confusion on this point in the reported arbitration cases. v. 451. the arbitrator states that there is "a heavy burden of proof and persuasion' upon a party claiming that a prior decision is erroneous in principle and should not be followed. 276. asserts the affirmative of an issue. Joseph's Home. 189 N. and it remains with that party until the termination of the action. to distinguish between burden of proof when used in the strict sense and "burden of proof" when used with obvious reference to the "burden of going forward with the evidence. the fundamental principle. Parkersburg and Marietta Sand Co." 7 ' In the courts.W. of course. 9 Wilson v. or the "burden of going forward with the evidence. 723.g. Light & Power Co. 67 S. 172. III BURDEN OF PROOF IN GRIEVANcE ARBITRATION At first glance. 125. Lakin. 127 S. 125. 2d 684 (1943). Co.'" In the discussion of arbitration cases in this paper. 97 U. 13 Clapper v. 2d 27 (1938). California Central R. 129 N. 6 Mobly v. Kruggel. 166.E. 33 F. 237 (1877) . 1929). Chalmers. supra note 12. 87 (1953). 861 (1892).C. 32 A. 29 Pac. 128. 94 Calif. 2d 902 (3rd Cir.1959] GRIEVANCE ARBITRATION party at any particular time during a tHal to create a prima facie case in his own favor. in Bethlehem Steel Co. . therefore to be carefully guarded and rigidly enforced. where possible.. 2d 597 (1948). Lakin. 449." It is considered by the courts that the rules concerning burden of proof are essential to the proper administration of justice. v. suora note 5. an attempt will be made. 98 Atl. 134 Ga. is that the burden of proof in any cause rests upon the party who. 593 (1925) . St. 710.. 20 Lab. 92 N. s Lilienthal's Tobacco v.
"This rule [burden of proof) is not recognized as such in arbitration. would be likely to assume that the judicially contrived rule of burden of proof would be the most likely legal rule to be applied without hesitation by arbitral tribunals. even experienced arbitrators emphasizing the informality of this consensual forum.1 7 In this case. 10 Lab. neither party14 has the formal 'burden of proof' such as prevails in a law suit. The article originally appeared in Personnel Magazine. After all. Jules Justin has stated: Unlike a court of law.. 16 Ibid."' 15 But Mr. . Proving Your Case. we have here an adversary proceeding in which opposing parties are frequently in dispute concerning factual issues. Inc. Marion Beatty. or have his claim or defense rejected. 55 (Eppler & Son: 1956). Another arbitrator. a party to such a controversy must either produce convincing evidence of any affirmative assertions essential to his case. some writers. the issue was whether the employer had violated the collective agreement by hiring performers without execution of individual employment contracts in certain required form. .MARQUETTE LAW REVIEW [Vol. he would say. The basis for this refusal 14Justin. . Hirst Enterprises. 43 labor arbitration. has remarked. The problem appears in sharp outline in a case decided.Ordinarily to insist on the burden of proof rule leaves the impression that technicalities are being brought into an arbitration case where they do not belong. Justin. however. Arb. except in those limited instances in which observance of court or legal rules is required by statute. Arb. Likewise. 6 It would seem from this qualification that Mr. Beatty qualifies his statement by acknowledging that Of course somebody must prove something to the satisfaction of the arbitrator or he will have no alternative but to dismiss the complaint or grievance and leave the parties where he found them. by Mr. appropriately enough. though trained in law. . This is no more than a statement of the rule of burden of proof. Arbitration. 7 Justin. refused to offer any evidence. there is no burden upon the claiming party to establish in the first instance a prima facie case. 15 Beatty. It is more appropriate to say that both parties to an arbitration run the risk of non-persuasion. 955. Obviously. Beatty recognizes burden of proof in the strict sense. 44 (1954). For example. 963 (1948). a party should be expected to prove his case if the facts of the matter are seriously disputed. I. Labor-Management Arbitration Manual. since he admits that the arbitrator has "no alternative but to dismiss the complaint" if proof thereof is lacking. The union. In other words. even after prodding by the arbitrator and challenge by the employer to show even one instance of contract violation. deny that burden of proof has a place in grievance arbitration. he would continue. 24 Lab. p. However.
Each maintains its equal status before the Arbitrator. This never fails to arouse the union's leaders to suspicious dissent. Nor does a claim by one party. p. about burden of proof. 9 But this statement too must be qualified: "However. in American Optical Co. Arbitrator Whitton states (at p. Updegraff and McCoy's observation is very apt: "The atmosphere of ease and informality . 2' Most other arbitrators do not share this reluctance. the strict rules of legal procedure do not apply in arbitration-neither party has the 'burden'. at p.. alleging that the other party violated a contractual provision. . 21 This automatic aversion to legal terminology seems to be particularly prevalent among union leaders without legal training who are sometimes convinced that this is just another artificial device to frustrate a just claim. but both appear to recognize the validity of the rule when it is nameless or when it is called something else.." 20 It would seem that this is a problem of semantics. these writers state. does not prove or establish the validity of that claim. it should proceed first with its evidence.' This appears to be a good statement of the rule of burden of proof in the strict sense." Ibid. 96 (CCH. 22For example.1959] GRIEVANCE ARBITRATION was the union's belief that the company was obliged in the first instance to show that it had fully complied with the agreement. of 'going forward' or of making out a prima facie case. Mr. 292): "First. 288 (1946). In literally hundreds of published cases. Many of these cases will be discussed in this paper. at 97. understanding it. as such. Justin." Arbitration of Labor Disputes. denies any intention of relying on this concept: Unless the contract provides otherwise. o Ibid. 4 Lab. may be quickly shattered by a suggestion by the company's attorney that since the burden of proof is on the union. the party who claims that the contract has been violated must be prepared to offer to the Arbitrator material and evidentiary facts to support or justify its claim. by one party against the other under a collective bargaining contract. What seems apparent here is an understandable reluctance to use legalistic terminology. the rule of burden of proof is explicitly recognized 22 and held decisive where the evidence on a point is lacking or unconvincing. The two arbitrators whose opinions are outlined above agree that "burden of proof" has no place in grievance arbitration. I find the burden of proof / on the . saying. compel the other party to disprove it. Justin rejected this argument. however. Both parties come to arbitration as equals. unsupported by any proof. 47. would disagree. without rejection of the underlying legal methodology. The Arbitrator finds no basis under the Contract or in the arbitration process to support this position. 19 2 Ibid. Is24 Lab. Arb. even though they had intended to open the case. of proving or disproving an alleged claim. Arb. The mere assertion of a claim. However. 1946). Mr. "This is so sensible and logical a principle that no one.
to be proved. and requires at least sufficient evidence to remove the matter from the realm of conjecture (Creamery Package Company v. derived from the evidence. Southern Bell Telephone & Telegraph Co.MARQUETTE LAW REVIEW [Vol.. Westinghouse Air Brake Co. . The arbitrator is the court of last resort in the process and should follow generally accepted procedural rules in arriving at his decision. Arb. Arb. The collective bargaining process implies a system of industrial jurisprudence operating within a framework of substantive and procedural rules of law. McCoy. General Television & Radio Corp. the tribunal should not discard positive. nor does it furnish a basis for a finding the other way.. 356. and secondly. Abrahams. v. 187. Railroad. New Jersey Company. 2 Lab. Arb. when the evidence shows that there were other witnesses to the alibi whom the union deliberately refrained from calling. 262 Mass. 157 F. does in my opinion sufficiently rebut that prima facie case.22a using just that terminology. Of the latter." McCoy. It is more than quantitative probability (Callahan v. 265. 2d 486). and making ultimate findings not necessarily consistent with the testimony of any one witness . 742. and the burden of proof. who must bear the burden or fail in the case. Southern Bell Telephone & Telegraph Co. first.. and as a corollary to the first. 27 Lab..Y. 342. according to the nature and strength of the proofs offered in support and denial of the main fact to be established (Central Bridge Corp. Day v.. Inc.R. Co. and McCoy.. Baker. Montgomery Ward & Co. 26 Lab. The function of the Impartial Referee is.L. 47 N. 282). are on the Company to prove reasonable cause for the discharge. one side or the other should have the burden of proof. 22b Where the evidence presented fails to constitute a prima facie case or defense (where. except for matters of common knowledge.L. credible evidence in favor of an inference drawn from tenuous circumstances that could at best support only an anaemic suspicion (N. See also. Fleischman Company. An alibi proved by two witnesses. And. 211 Wis. accepting all or any part of it (or disbelieving all or any part of it even though it is uncontradicted). the weight of the evidence shifts from side to side as the hearing proceeds. 437. Arb. it is considered incredible). many arbitrators draw a distinction between burden of proof in the strict sense and the "burden of proceeding with the evidence" . 96 Me.. the opposite party is company. the burden of proceeding with the evidence is held to shift to the other party. to find the facts by weighing all the testimony. there are two that are particularly applicable to this case. the case must be made from the evidence presented. 186. Industrial Commission.B. 358 (1957): "While the burden of proof remains on the party affirming a fact in support of his case and does not change in any aspect of the cause. 345 (1953). . the making of a prima facie case discharged the burden of first proceeding and cast upon the union the burden of rebutting that prima facie case. Bay City Shovels. 483 (1942). 207). Arb. 746 (1956). 2d 636. 20 Lab. 326)." 22b. 125 F. so that it is made to appear more likely in the sense that actual belief in its truth.B. . Sheboygan Chair Co."While we have held that the burden of first proceeding. Ryder. Caldwell v. 26 Lab. just as in the court cases. once the party who bears the burden of proof makes out a "prima facie" case. exists in the mind of the impartial tribunal notwithstanding any doubts that may linger there. 2 Gray 130. 29 Lab. Arbitrator Babb states the following in Allis-Chalmers Mfg. N. v." 22a In a rather comprehensive discussion of the problem.of the actual truth of the proposition . failing to sustain which he must fail. Arb.although mere disbelief is not evidence. for example. v.. . 278 (1956) . "The weivht or preponderance of the evidence is its power to convince the tribunal of the fact . 43 IV GENERAL OPERATION OF BURDEN OF PROOF IN GRIEVANCE ARBITRATION Just as in the court cases discussed above in Section II of this paper.R. therefore.
the arbitrator observes. While there is much to be said for this point of view (since the purpose of arbitration is not only the sustaining or denying of a claim. .. 709. 635 (1957). Arbitrator Seward required the employer to proceed first in a discharge case. I think it is not inappropriate to express my concern at the use of the technique of denying allegations. Westinghouse Electric Co. Arb. John Deere Waterloo Tractor Works. but the resolution and removal of a dispute). 220 This latter approach. 23 This is viewed by some as an advantage. the best interests of the arbitration process will be served by both parties presenting their evidence to the arbitrator. Often cross-examination helps to make the factual picture clearer to the arbitrator. 25 Lab. under Labor Arbitration Rule 26 of the American Arbitration Association.. Davey. Lockheed Aircraft Corp. Professor Davey observes in one decision. Arb.. 841. Arb. Arb. I. that the party who bears the burden of proof is obliged to present his proofs first. At p. 710-711 (1956). 27 Lab. This is the second case in which one party has seen fit not to present a direct case on the basis that the other party has failed to offer anything. "Without overemphasizing the 'burden of proof' concept. supra notes 16 and 22. still it should be assumed that the parties probably know what they are doing. 270. For example. 583.. 274 22d 23 (1955) ." See also. it is obvious that it is incumbent on the Company to support the charges made against an employee.. Nevertheless. why should the arbitrator insist upon hearing another version of the facts? Indeed. In Bethlehem Steel Co. Arb.to defend against.laggs. 28 Lab. where the company was somewhat less accommodating. Cf. . Updegraff and McCoy state: 220 McCoy. The Company has recognized this necessity and has implemented it at the hearings by proceeding first with its evidence ind testimony. as in court cases. 198. Justin. Inc. As noted infra. as well as 22d providing a basis for judging credibility of testimony. 584-585 (1953). has been criticized as being too legalistic. If the defending party in good faith feels that the charging party has simply not made out a case. 29 Lab. 836 (1956). however. Arb. 202-203 (1957). Douglas Aircraft Co. The arbitration process is (or should be) a search for truth. Straight denial of allegations without presentation of witnesses precludes the other party from the privilege of cross-examination.1959] GRIEVANCE ARBITRATION usually held to have no obligation whatever to proceed with its case. the arbitrator may in his discretion vary the order of proof. Jones. Southern Bell Telephone & Telegraph Co. 20 Lab. Hirst Enterprises. It would be presumptuous for the arbitrator to lecture either party on how to present their cases. even in the cited case. See Simkin. In all but the most unusual case. 26 Lab. note 25a. A party with a strong case has nothing to fear by presenting his witnesses. V EFFECT OF BURDEN OF PROOF ON ORDER OF FIRST PROCEEDING It is ordinarily assumed in grievance arbitration. A California arbitrator is of the opinion that this result is required by California law. Professor Davey did not let the union's refusal to present witnesses interfere with his rendering a decision in favor of the union on the ground that the company had simply not made out a convincing case.
in a case in which the writer represented an employer. Law. whether an employer should proceed first with his defense out of the customary order (or the union in a discipline case) is a matter of which probably should be left to the decision of that party. From a purely practical point of view. Benetar. irrelevant 5a and undesireable "fishing expeditions" by the other party. supra note 17. simply as a means of expediting the matter.2 24 Op. both supra note 23. before some basis for the claim is shown. 25a Justin would apparently agree. 6) 34. the matter can sometimes be important indeed. in the interest of maintaining a satisfactory relationship among the parties and the arbitrator." It is questionable. See I. and I. testimony showing the lack of a contract violation. since most disputes arise over the insistence of each that the other open the case. Updegraff and McCoy believe that the arbitrator should be the judge . supra note 21. elected to present. 38-39 (1956). Hirst Enterprises. In some cases. that most parties view the obligation of first proceeding as an advantage. however. but partly also because the logical method of proceeding is for the one who has advanced a grievance to state and prove it. and Douglas Aircraft Co. it will permit disposition of the grievance on the merits. but to the party who must decide which witnesses to use and which points to stress. On the other hand. (No. through examination and cross-examination. To the arbitrator this frequently seems to make little difference.. or where the defense is complex and technical. 97. the union representative made an opening statement charging that the employer had misclassified an employee. Lockheed Aircraft Corp.. described above. see also. 43 The right to put one's evidence first is generally considered an advantage. an incautious direction by the arbitrator that a party proceed out of order can easily lead to lengthy. The basis for this refusal was the belief that the employer should be required to prove his innocence in such cases. The Trial of a Labor Arbitration. particularly where the precise details of a claim are somewhat vague.2 Prac. however. The writer. to submit any evidence. particularly where the claim is simple and sharply defined. For example. as in Mr. 25 For example. supra note 17. In addition. 5 This is because of the practical desire of each party to determine the other party's position.. and is given to the party who carries the bnrden of proof partly to offset the disadvantages inherent in that burden. at 47. this can and perhaps should be done. at p. Justin's case. a party may himself be willing to proceed out of the usual order. it can be unfair to expect the defending party to proceed with evidence first. Inc. in some situations. The union then refused. cit. or where there is doubt that the claim is made in good faith. Inc. with all its weaknesses. Hirst Enterprises. before being obliged to present his own position. a result greatly to be preferred over a procedural ruling which might prove to be mutually frustrating.. However. out of the usual order.MARQUETTE LAW REVIEW f[Vol.
81 (1955)... 22 Lab. Carnegie-Illinois Steel Co. Bethlehem Steel Co. The general rule is acknowledged in Whitton. 949 (1950) . 490 (1946). Pittsburgh Commercial Heat Treating Co. Owl Drug Co. 562 (1948). . 3o Cheney.' 7 Similarly. 565 (1947) .. Blumer. 361 (1949).. Platt. Douglas Aircraft Co. 106 (1954). Arb. 20 Lab. 22 Lab. Westinghouse Electric Corp. '3 '5 2' Jones. National Tube Co. Flexible Barriers. ure . Reynard. Robbins & Myers. Arb.. 25 (1949). 793 (1956). Arb. Levy. 4 Lab. Inc. Mosaic Tile Co. Arb. . Arb. 203 (1957) quoting from Section 1981 of the California Code of Civil Procedure. 13 Lab. See also Labor Arbitration Rule 26 of the American Abitration Association: ". 29Blair. Madison Institute. Arb. or his counsel.' 0 A party claiming that a grievance has been settled in an earlier step of the grievance procedure"l or that the other party has agreed to drop the grievance12 must prove that this is the case.. Dworkin. 9 (1945). Arb. .2 8 Similarly.1959] GRIEVANCE ARBITRATION VI ON WHom DOES THE BURDEN OF PROOF REST? The "rule" generally recognized by arbitrators seems to be. 605 (1947). in his discretion. Wyckoff. North American Aviation. 10 Lab. Louis County Water Co. 875 (1954) . The arbitrator. supra note 21 at 97. Arb. Inc.... 14 Lab. Arb. 288. Douglas. Updegraff. Loucks.29 A party claiming a forfeiture or penalty under a contract has the burden of proving that such was the unmistakeable intention of the parties thereto. 243 (1953) . 292 (1946) . 3 Lab. Arb. a party who claims an agreement to arbitrate a particular issue must prove the of who should be required to open.. Chemical Co. 24 Lab.. or that an oral agreement has been made extending the terms of the written agreement must bear the burden of proof. may vary this proced- "3 Komaroff. and proofs. General Optical Co.. Arb. 36 '7 Keough. cit. 10 Lab. 28 Lab.. Inc. 14 Lab.. it bears the burden of proof. 6 Lab. 354.. Arb. 282. Hilpert. Selekman and Shipman. Arb. 80 (1952) . York Bus. Arb.3 A party claiming that the other has waived some right under the contract must prove such claim.. St. Arb. as in court cases. Arb. 26Supra note 8. Flintkote Co. M&ode O'Day Corp. 27 Lab. 26 that the party holding the affirmative of an issue must produce evidence sufficient to prove the facts essential to his claim. where the agreement provides for the continuance of local working conditions. Youngstown Sheet & Tube Co. 715.. Arb. 24 Lab. 198. therefore. 13 Lab. State Board. See also. 31 Killingsworth..34 A party asserting the modification 5 or cancelation 6 of an agreement. 13 Lab.. Arb. 717 (1955).. 78. Cornsweet. 498 (1948). Central Boiler & Mfg. Arb. 18 Lab. Cole. the burden of proof is held to rest on the party against whom the arbitrator would hold if no evidence were given on either side. 357 (1948) . 462 (1949).. Op. Waterfront Employers. Arb. TexasU. 12 Lab. Bethlehem Steel Co. Merrill-Stevens Dry Dock & Repair Co. The party initiating the arbitration..S. 11 Lab. 699 (1954). Arb. "2Conn. Co. 1 Lab. Sioux City Battery Co.. Pollard. Arb. Arb. 22 Lab. 724 (1946). Co. 28 Kerr. 9 Lab. 4 Lab. shall [first] present his claim .2 7 Illustratively: the party claiming a controlling past practice must prove its existence and its binding effect. Arb... the party asserting the existence of such a condition must sustain his contention by proof. If the union claims that an employee was misclassified. and Duff. 645 (1950): Killingsworth... (1950). 723.
261 (1948) and Reid. 184 38 that the agent has the real or apparent authority which he assumes to exercise. 24 Lab. in the absence of evidence to the contrary. Arb. 212 (1953) (Where the union asserts the ability of an employee to perform certain overtime work. 9 Lab. 622) . the burden of proving that the case falls within the exception falls on the party asserting that such is the case. Washington Woodcraft Corp. Arb.. Co. where a contract provided for the continuance of local working conditions except where a change was justified. Myers. 244 (1950). Douglas Shoe Co. Arb. 11 Lab. Arb. the burden is on the person dealing with the agent to show . Arb.. 46 (1949). 908 (1948) .. 291 (1952) (Workers who claim the vested right to perform certain work must bear the burden of proving that the vested right exists). 101 (1948). it "has the burden of supporting such allegation by clear and convincing proof. Arb. 354 (1948). Spaulding.. 2 Lab. Arb." it was held that the employer had the burden of demonstrating the existence of such circumstances. the arbitrator held that the employer had the burden of proving that the employee Cole. Other instances of the burden of proof being imposed upon the party asserting the affirmative are the following: Rosenfarb. 40 Shipman. Kaplan. Arb. . 11 Lab. 19 Lab. Co. 41 Bethlehem Steel Co. Holly. 9 3 Where the contract provides a certain rule. supra note 40. Simkin. 41 Similarly. 40 Thus. 84 (1946). Bethlehem Steel Co. 544 (1948)." 18 Lab. Arb. Arb. Arb. Sperry Gyroscope Co. 773 (1956).. 14 Lab. 11 Lab. Arb. Arb. Arb.. he has the burden of proving that point. 39 Platt. Corn Products Refining Co. 242. Arb..3 8 And if an employer claims that an employee was not discharged. 269 (1955) . 44 Seward. 14 Lab.. the employee or union representa43 tive was engaged in activity compensable under the labor agreement. but states that the rule is not binding in certain enumerated instances. And where the contract provided that the employer was not required to follow seniority in case of layoff where the retention of certain employees was necessary "under the special circumstances then existing. Cf. 3 Lab. (1952) (". 11 Lab. Foote Bros. Inc.. 27 Lab. 444 (1955) (The burden of proving hiring discrimination against Negroes rests with the union). Inc.. Central Boiler & Mfg. L... 12 Lab. 293. 186).. Robertshaw-Fulton Controls Co. at p.. 44 However. in another case. it is assumed that. 620 (1950) and Marshall. Avco Mfg. Inc. International Harvester Co.C. 43 Epstein. 891 (1948) and Davey. the union being held to have the burden of proving justification for a wage increase.. where the contract provided pay for grievance time. Consolidated Steel Corp. 24 Lab. Hardy Mfg.MARQUETTE LAW REVIEW [Vol. Arb. 43 existence of the agreement. Gear & Machine Corp.. Pigors. Kohler & Campbell." 14 Lab. 14 Lab. Arb. Corp. Arb. International Harvester Co.. Bunny Bear. McKinney Mfg. 42 Shulman.. 151 (1950). Arb. 20 Lab. and Lohman. Maggs. it has been held that the burden was on the employer to justify a refusal to make payment. See also Mann. Graphic Arts Ass'n of Washington. This principle has also been applied in "interests" disputes. Rath Packing Co. North Carolina Pulp Co. at p. 297 (1949) and Tyree. Arb. Arb.. W. Gilden.. where the contract limited backpay to the date of filing the grievance unless the circumstances were such as to make it impossible for the employee to know that he had a basis for a claim prior to that date. Flintkote Co. 2 Lab. 10 Lab. but rather quit. Co. 382 (1944). the burden of proving justification for a change was held to be on the employer.. 18 Lab. 12 Lab.. 723 (1946). 20 Lab. Arb. . 403 (1953) .. D. Arb.4 2 In such a case. Ford Motor Co.
. Craig. 321 Pa. 63 Pac. Arb. 369. as it claims. 1954. Glou v. Jones on Evidence in Civil Cases.48 but the rule recognized by a majority of the courts seems to be that in cases of this sort the burden of proof in the strict sense remains with the party asserting the affirmative. 709 (1956). Arb. Co.1959] GRIEVANCE ARBITRATION could have had knowledge of the basis for the claim prior to the time he filed the grievance. "The defense is in the nature of limitations. 778. 696 (1936). 840 (1901). This is information which is peculiarly within the knowledge of the Company. Ordinarily the so-called burden of proof in arbitration proceedings rests with the party filing the grievance-the Union in most cases. upon trial of such issues as are here involved. 883 (1934). transfers and layoffs of employees raise problems of particular interest and will be discussed separately in this paper.I. arbitrators have held that a party holding the affirative of an issue may not necessarily have the burden of proof.I. p. Arb. 2 (1927) : "In Rhode Island. 45 However. it should have the burden of showing that it has. 139." Ibid. The reason customarily assigned for this procedural change is that until the union's representatives are aware of the facts upon which the company justifies its action. International Harvester Co. 24 Lab. The burden of 47 . while in the other cases the exception determined whether there was any liability at all. Cf. 48 Fazio v. 131 Calif. 587 (1946): "The retroactive date is also in issue.. are matters within the peculiar knowledge of the Company. Thurston Mfg.46 In some cases.. 114 Pa. 48 R. firmative plea and proof. Super.. 182 Alt. Maggs." Reynard. §181 (3d ed. abolished or terminated the work formerly done by these employees in the Research Department. A recognized exception is made in cases involving disciplinary action where most arbitrators place upon the employer the burden of justifying the action which it has taken in discharging. 372-373 (1955). 4 Lab. "." 4 Lab. Pittsburgh Railways Co.. Arb. This is particularly true in cases in which the fundamental facts lie within the peculiar knowledge of the opposing party. Ass'n. Cf. Wardlaw. 173 Alt. 7. but that slight proof will be sufficient to shift the "burden 49 of proceeding with the evidence" to the other party. 588-589. Moran Shoe Co. 540. 244.. . Celotex Corp.. Lockheed Aircraft Corp. Proof of "Just Cause" for Discharge Although there is some authority to the contrary.47 The courts have sometimes shown inclination in this direction . 775 (1951). at pp. 49 Giblin v. 1924). which is always a matter of afproof that the grievance was filed with the company earlier than admitted is on the union. Bancroft Whitney.50 the courts generally hold that an employee suing for a wrongful discharge has the 45 46 McCoy. Cases involving discharge or discipline. and raises a problem regarding the burden of proof.. suspending or otherwise censuring an employee. 418 (1922). Similar considerations have led the arbitrator in this case to conclude that since the reasons for the change as well as the nature of the operations subsequent thereto. 371. See also. these employees had been transferred out of the Research Department and were not to be expected to have first hand knowledge of what has transpired there after January 1.. 44 R. Security Ben. 27 Lab. they are unable to rebut the case made by the em- ployer. 137 Alt. VII DISCHARGE AND DISCIPLINE CASES A. Arb. 50 Schafer v. 16 Lab. 117 Alt. Dudley Hardware Co. the plaintiff starts with the . Joost v. this last instance may be distinguished from the others on the ground that in this case the exception related to a limitation of an already existing liability.
63 (1945). arbitrators have almost 5 3 invariably held that the burden of proving "just cause" is on the employer. however. The burden of proof in the sense of establishing by a preponderance of the evidence that he has faithfully performed his contract and defendant has broken it rests upon the plaintiff. 296 N. Defendant under the general issue may show incompetency. Co. 19 N.W. inefficiency or mismanagement which will defeat this claim. 19 Lab. 702 (1946). Zitlin v. Arb. Williams v. Pollard. 122 Utah 107. Wardlaw. 450.& Depot Co. United Air Lines. Max Heit Dress Corp. 585. however..W. Arb. 5 Lab. 54 Among many others. 7 Lab. plaintiff has failed to establish his case and the verdict must be for the defendant.' [citing cases] At the close of the testimony. 2d 257 (1952). the existence of the contract (the collective agreement) and the performance by the employee are rarely in issue. referring to a contract provision directing the reinstatement of employees "proven to have been discharged without proper cause. While this court places the burden of proving lack of misconduct on the plaintiff.MARQUETTE LAW REVIEW[ [Vol.. 630 (1941).. however. 624. 355 (1947) . Wyant & Cannon Foundry Co.Y. Platt.. Saari v. see Annot. the usual issue being the former. It is likely. Arb. of America. 488-489. 237 Wis.I. 150). 241. 151 Misc. 1 Lab. 2 Lab. 237 (1945). that the burden of proceeding with the evidence initially fell upon the employer. In the usual labor arbitration case.W. See also.S. Christ Cella's Restaurant. (7 Lab. Caterpillar Tractor Co. This being the case.. In a case involving the discharge of an airline pilot. Stoffel v. Arb. in Swift & Co.. 207. Arb. 7 Lab. however. Ogden Union Ry. 247 P.W. 52 is held to rest on the employer. Columbian Rope Co. Inc. 234. 49 A. Boynton Cab Co.. 8 Lab. [citing cases] Plaintiff has prima facie sustained his burden when he testifies generally to faithful performance and the defendant's breach. 248-249.. such being considered to be an affirmative defense. Arb.5 1 The burden of proving the existence of just or sufficient cause for the discharge.R. 293 Ky. 168 S." 48 R. Arbitrator Wagner suggests that "a history of amicable unionmanagement relations" might be relevant in determining the location of the burden of proof. Palmer-Bee Co. Giese. In this latter case. Arb. This burden does not shift. 7 Lab. McKelvey. 147 (1947). George C. 311 Mich. Leaf Tobacco Co. 7 Lab. For example. procedurally the case bears a close resemblance to those cases cited infra which place the burden of proving misconduct upon the defendant-employer. 2d 121 (1945). Arb. 237. 254 (1945). 145 Neb. Cahn. 450 (1947). at p. his performance thereof up to the time of his discharge and the resulting damages. if the evidence be evenly balanced. 17 N. in another case involving substantially identical language. Arb. 54 As will appear obligation of showing that he performed his contract faithfully and according to his best skill and judgment. 443 . 275 (1934).. Arb. In American Smelting & Refining Co. 114-115. 43 burden merely of proving the existence of the contract. the only remaining questions are 1) the existence of just cause for the discharge. Dates & Associates. 'if he would not have such prima facie case result in an established case by the required weight of the evidence. Arb.. 5 Lab. Aluminum Co. Hampton. 521bid. and 2) the problem of proof of damages. Platt. 587 (1952). Metcalf e Const. On the former point. 5 The extremely rare cases in which arbitrators have found the union obliged to prove lack of "just cause" have been decided on the basis of rather unique contract language in each instance. Malone & Hyde. for public policy reasons. 2d 570 (1943). Campbell. Arbitrator McCoy found the burden of proof to be on the union. see. 2d 3 (1945).. 554 (1947). [citing case] The duty of going forward with evidence of mismanagement or misconduct or unfaithfulness is then shifted to defendant. that this statement was made with cases involving a charge of discrimination for union activity in mind. Professor Gregory. 271 N. Inc. and Russell v. at pp. v. Similarly." stated the opinion that this language placed the burden of proof upon the union. the arbitrator held the burden of proof to be upon the union..L..
Enterprise & Century Undergar- . Shea Chemical Corp. 27 Lab. Arb. 401. Aluminum Co. Arb.. 60 Babb. therefore the burden rests on the party asserting it .. supra note 23." 61 These approaches will be discussed separately. 29 Lab. 58 Pollack. Arb. Marlin Rockwell Corp. 29 Lab. Sears-Roebuck & Co. United States Steel Corp. to retrace the [disciplinary] process and convince an impartial third person that the facts acted upon warranted the action taken. 27 Lab.. 291 (1957). 56 See Warns. Shea Chemical Corp.. Another basis asserted for requiring the employer to bear the burden of proof in these cases is that he was the "moving party" and should therefore justify his action. Arb.. 211 (1947). when challenged. 415 (1957). 276 (1957). Parker. 61 Jones. 720 (1955).56 2) since the reasons for the employer's disciplinary action are peculiarily within his own knowledge. Reynard. 198. Copco Steel & Engineering Co. 29 Lab. 50 Warns. 203 (1957). 709. Lockheed Aircraft Corp." i. 5 See M1aggs. Howell Refining Co. 512. 27 Lab. 237 (1945). 414.. that he was guilty of no offense of any kind at any time . 415 (1957). Arb. American Sugar Refining Co.60 6) a "just cause" provision in the agreement. 24 Lab. F. Oppenheim.e. Arb. Kress Box Co... 410. this is burden of proof in the strict sense. J. 414. Arb. arbitrators have held consistently that the employer bears the initial "burden of proceeding with the evidence. being the equivalent of "economic capital punishment". 29 Lab. he must bear the burden of jusitfying such a serious move . This would appear to be somewhat irrelevant. Conn. 55Pollard. Delta Cartage Co. "requires the Company. 710-711 (1956). 21 Lab. and has the social obligation of justifying this action. Arb. 24 Lab. 8 Lab.. Arb. 24 Lab. Arb. he must carry the burden of demonstrating their adequacy. Arb. Shea Chemical Corp. 6 Lab. Douglas Aircraft Co. The most frequently advanced reason for imposing the burden of proving "just cause" upon the employer is the sociological argument that the employer can exact no greater penalty than discharge. otherwise the employee would be unreasonably obligated to prove the "universal negative. 1. Conn. 29 Lab. 486. 415 (1957). Hale.. Lockheed Aircraft Corp. however. see also.. in addition. 418 (1953) .. State Board. of America.58 4) the imposition of the burden of proof on the employer is justifiable as merely an "extension of scientific management to industrial relations". 272. Cheney. Arb." 55 Various rationales are utilized by arbitrators to justify the imposition of burden of proof in the strict sense upon the employer. 62 It is argued that a discharge results not only in the (1946). in view of circumstances peculiar to industrial relations.59 5) the existence of "just cause" for discharge is in the nature of an affirmative defense. 491 (1956). Arb.. Arb. Warns. 28 Lab. 414. These are at least six in number: 1) since discharge is the most severe penalty an employer can impose. State Board. 62Warns. Arb. or "economic capital punishment". 514 (1956)... 405 (1955). since the employer is the "moving party" in some way or another in virtually every instance of industrial dispute.57 3) it is "consistent with the American tradition that a person should not be considered a wrongdoer until proof establishes his guilt" .1959] GRIEVANCE ARBITRATION from an examination of the cases. 66 (1955). 234.
particularly in periods of full employment. Marlin Rockwell Corp. 64 Conn. 418 (1953). payment is held to be an 'affirmative defense'. 20 Lab. when one person sues another for money lent. or substandard work .. it has been suggested that these arguments. the lender is not required to prove that the loan has never been paid. when a contract forbids an emment Co. 64 (1955). The argument is stated by one arbitrator as follows: The common law does not always place the burden of proof on the party who is seeking relief. L. 733. Mann. this phrase stuck and is now one of the most honored entries in the Arbitrator's Handy Compendium of Cliches. referred to the discharge of an employee as 'economic capital punishment. The union may have good reasons for pressing for a final determination of the issue involved. 10 VAND. 64 These are telling arguments.. Inc. they have held that in many situations when the defending party is in a position to prove an affirmative more easily than the party seeking relief can prove a negative. Judges have realized that proof of a negative is extremely difficult.. the employee may not be interested in reinstatement.MARQUETTE LAW REVIEW [Vol. Arb. they usually involve discharge for such reasons as excessive absenteeism or tardiness.. Thus. momentarily intoxicated by his own eloquence. Some Procedural Problems In Arbitration. 21 Lab. For like reasons. to be proved by the borrower. inability to get along with supervisors or fellow employees. 'discharge is economic capital punishment'. Every experienced arbitrator has had cases of this type. 63. a fact attested to by nearly universal acceptance.. Copco Steel & Engineering Co. 2.. Indianapolis Chair Co. 706. granted by the collective agreement. 43 loss of a job. 740-741 (1957). the burden of proof is on the former. Arb. . REv. Arb. thereby affecting future job opportunities. 24 Lab. Now let us see how much of the foregoing makes sense and how much is pure drivel. 63 Parker. Accordingly. An argument frequently used in this connection is that to require the employee to prove his innocence of misconduct or other fault is to impose upon him the task of proving a "universal negative". One writer has stated: On some occasion in the faraway past an arbitrator. 65 Aaron. Perhaps the best way to begin is by reining in the runaway metaphor. 410..' Unfortunately.. However. 24 Lab. Often. but also of all the benefits. in some cases at least. that no one doubts the fact that the burden of proving "cause" rests with the employer. 720 (1955). it is nothing of the sort. the point being that it is unnecessary to resort to so rhetorical an argument to sustain so simple a proposition. 63 It is further argued that a disciplinary termination of employment marks the employee as undesirable. however. State Board. but even if the arbitrator decides the discharge was improper. Arb. 65 The writer of this quotation goes on to note. are not so significant as they might seem. 708-709 (1953). and by the time the grievance reaches arbitration the employee may be happily employed somewhere else. particularly valuable seniority rights.
238. 69 4.W. however. an employee discharged for striking his foreman can. where essential evidence is within the peculiar knowledge of the other party. though the "burden of proceeding with the evidence" may be shifted by slight proof. H. Morris Shoe Co. 420. Chas. in which the union had apparently proceeded under a completely erroneous assumption concerning the actual reason for the discharge.6 . The argument that it is "consistent with the American tradition that a person should not be considered a wrongdoer until proof esta0 blishes his guilt" 8 is one which finds some support in judicial decisions.. 125 Alt. Coleman. 718 (1915). 221 SAV.. For example. 841. 101 Conn. management should be equally diligent in justifying its decisions in all these instances: Because of the severity of the charge. 27 Lab. Murray v. the courts generally hold in similar cases that the burden of proof remains with the party asserting the affirmative. hardly be heard to say that he has no knowledge of the employer's reasons for taking disciplinary action. 177 S. Indeed. Arb. 187 Ky. most judges and arbitrators have reasoned that it would be unjust to put on the employee the nearly impossible burden of proving the 'universal negative' that he had never been guilty of any conduct whatsoever justifying his discharge. It is generally held by the courts that an employee will not be assumed to have been derelict in his duties merely because of the fact that he has been discharged. However. 242 (1920): see. since the alleged infraction has usually been clearly designated in the earlier steps of the grievance procedure. 710-711 (1956). Heer Dry Goods Co. 69 Maratta v. 617 (1924).1959] GRIEVANCE ARBITRATION employer ployer to discharge an employee unless a justification exists. App. and a discharged employee sues his employer asserting that he was discharged without justification. 67 Supra note 49. 190 M1o. 426. the reason for discipline may be quite obvious. . 6s Supra note 58. they have held that the existence of a justification for the discharge is an affirmative defense to be proved by the 66 The arbitrator then points out that the wisdom of this rule was demonstrated in the case before him. 709. Paramount Petroleum & Products Co. Indeed in some cases. the "universal negative" argument seems to have more relevance to determining the location of the "burden of proceeding with the evidence" than it does to the determination of which party bears the burden of proof in the strict sense. Lockheed Aircraft Corp. 3.Nor is the "universal negative" argument truly persuasive in most cases. It is argued by some that since employees are at least as equally important to an employer as are machines. manufacturing processes and pricing policies. the majority of arbitrators and courts of law place the burden of proof on manage6r Maggs.. v. 837.
Maggs. 29 Lab. a matter of more remote. Shea Chemical Corp. All of this is not so much a shift in philosophy toward sympathy for the worker as much as it is merely an extension of scientific management to industrial relations. Lockheed Aircraft Corp. Howell Refining Co. so that an impartial tribunal may be convinced that the facts warranted the action taken and that no violation of procedural due process has occurred.. the public or the government its decisions eliminating or altering basic products or fundamental manufacturing techniques.. Other arbitrators make the argument (though it is perhaps no more than a summary of those arguments outlined above.. Arb. 272. United States Steel Corp. 486 (1956) . 276 (1957). 28 Lab. 24 Lab.MARQUETTE LAW REVIEW [Vol. Arb. Maggs. Babb. or substantially revising its pricing policies. 272..71 As courts in resolving problems of this sort. Arb. Swift & Co. See court cases cited supra notes 51 and 52. A company in its operational decisions is impersonal. 27 Lab. 198 (1957). 358 (1957) . Though this argument springs from the expectations of society from employers. Arb. Arb. 401 (1955) . 72 this is the approach adopted by most. Kress Box Co. 73 Supra note 50. F. Another argument. 6. Arb. and the situation reconstructed. United States Steel Corp. and arbitration requires that the process be reversed. the above statement seems unchallengeable. 7'2 Supra notes 51 and 52. Babb. is that "just cause" is an affirmative defense. Douglas Aircraft Co." As a judgment of social desireability.. objective and carefully weighs decisions to be sure that they are justified by the principles involved and the facts. 29 Lab.74 70 Warns. 29 Lab. 27 Lab. J. 71 . Arb. 12 Lab. Arb.. but perhaps equal qualitative social significance.. Pollack. 709 (1956) and Jones. but not all. citing Healy.7 3 ment in a discharge case. Lockheed Aircraft Corp. Hale. 43 pointed out above. and seeks to shape procedures functionally sound as applied to the latter where (in discharge cases) the ultimate industrial penalty has already been assessed and applied by the employer. 5. the steps taken retraced. 414. 27 Lab. 29 Lab. AllisChalmers Mfg. 276 (1957). 74 Babb.. Arb. many argue that it should have some relevance in the shaping of legal rules applicable to such cases.. 415 (1957). 356. directly imported from judicial reasoning. the burden of proving which (even in the strict sense) rests upon the party asserting it. Co.. and a statement of their result) that the nature of the arbitration process itself requires the burden of proof to rest upon the employer: The rationale of these rulings [regarding burden of proof] rests on the functional differences between Court proceedings and arbitration hearings. it should also feel the obligation to justify the termination of the employment of an individual. These are the facts of modern industrial life. Arb. Today personnel and industrial relations must be similarly accorded the same intellectual emphasis. 108 (1948) . If management feels the responsibility (which some say it must) to justify to the stockholders. 709 (1956).
8 A rather imposing number of arbitrators reach the same result in a more sophisticated and indirect fashion: Where an employee has violated a rule or engaged in conduct meriting disciplinary action. 784 (1953). however. See e. Arb. 7 Lab. Whitton. 10 Lab.. Inc. Beaunit Mills. Carolina Coach Co. even in a field so amorphous as industrial relations. 12 Lab. 267. Babb. Arb. Allen Warehouse Co.. 401. 108.. 114 (1948) . Cf. 439 (1948). difficult to see what the fact that the "ultimate industrial penalty has already been assessed" has to do with it. whether any or all of the above six arguments are accepted. Arb. 20 Lab.. J.) Whatever the rationale adopted.. 21 Lab. 270 (1947). Arb. Baab. If management acts in good faith upon a fair investigation and fixes a penalty not inconsistent with that imposed in other like cases. Arb. For example. Kress Box Co. 866 (1956) . 76 Cheit. 26 Lab. 857 (1955). it is primarily the function of management to decide upon the proper penalty. Cf. Eastern Stainless Steel Corp. there is not complete agreement on where the burden of proving the propriety or excessiveness of the disciplinary penalty lies. Arb.7 . 12 Lab. and suggests that. 293. 405 (1955). since almost all arbitration disputes relate to past occurrences of one kind or another. Williams. Swift & Co. Arb. some principles have such obvious validity that they will be accepted and applied with uniformity by a wide variety of personalities in a great diversity of situations. 276 (1957).once the employer has successfully established bases for discharge. Arb. Arb. Sager Lock Works. 24 Lab. 24 Lab..." it seems that this approach is no more than a statement in different phraseology that the employer should bear the burden of proof. 20 Lab. 495 (1949). 455 (1953). also see Pollack. Selekman. Arb. American Smelting & Refining Co. 451. an arbitrator should not disturb it. 298 (1953). (It is. Naggi. 272.This unanimity is rather heartening. The consistency of arbitral opinion on this point seems to suggst the existence of an emerging and evolving system of industrial jurisprudence. United States Steel Corp. B. Russell Creamery Co. this unanimity does not extend to other burden of proof problems connected with discharge cases.. Burden of Showing Propriety or Impropriety of the Extent of Discipline While arbitrators agree on the location of the burden of proving "just cause"...1959] GRIEVANCE ARBITRATION In requiring the employer to "retrace the steps taken. Arb. F.. Ross. Gaylord Container Corp. it seems quite clear that the universal rule in grievance arbitration is that the employer must carry the burden of proof of "just cause" in a discharge case. 29 Lab. Livengood. . Healy. The only circumstances under which a penalty imposed by management can be rightfully set aside by 75 This is apparently as true in cases involving non-disciplinary terminations of employment as it is in cases of discharge for misconduct. the burden shifts to the union to demonstrate that the penalty of discharge is too severe. See also.g. Some arbitrators state simply that . .
Arbitrator Larkin adds this caveat (17 Lab.MARQUETTE LAW REVIEW [Vol. once management has shown an employee to be guilty of an offense. Arb. p. 19 Lab. at p. Arb. but not "just cause" for discharge. Other cases holding similarly: Dworkin. 7 where there has been abuse of discretion. it is described as being a minority position: Dworkin. Arb. 13 Lab. and any other mitigating circumstances. under this approach. 367. his skill and utility as a workman. 261 (1948).. In a more recent case.. see also McCoy. 43 an arbitrator are those where discrimination. 31 J. The contrary rule involves this principle: where the contract forbids discharge without "just cause".7 Since arbitrariness. 72 (1952). Gilden. 21 Lab. it would seem the better rule that the union has the burden of proving facts sufficient to warrant modification. as to the fairness of such hasty decisions. 1 Lab. Arb. Perkins Oil Co. 1 Lab. Chesapeake & Potomac Telephone Co. Arb. Donaldson. 943. Arb. Prasow. Larkin. 495. Anrod. bears the risk of non-persuasion. 377-378 (1953). his previous good conduct.. International Harvester Co.. William Brooks Shoe Co.. Morris Paper Mills. However. 21 Lab. 653 (1949). McCoy. 12 Lab. 945 (1950) . under this approach. discriminatory or capricious manner. 162 (1945). Corn Products Refining Co." Insofar as the McCoy approach implies that the arbitrator is powerless to modify discipline. discrimination or caprice cannot be assumed without proof. Chattanooga Box & Lumber Co. 260. 10 Lab. 30 (1949)." The corollary of this proposition is that an admitted offense might well constitute "just cause" for some kind of discipline. McCoy himself recognizes the power of the arbitrator to modify discipline in a proper case. Arb. Ideal Cement Co. 160.. 107 (1953) . Am. Jud. National Lead Co.. McCoy. 449 (1946). Arbitrator McCoy explicitly followed his earlier rulings. or capricious and arbitrary action are proved-in other words. the practical effect of this approach is to require the union to bear the burden of proving that these factors are in the case.. The Arbitration Process in the Settlement of Labor Disputes. 497 (1952). Arbitrators are sometimes anxious to 'wash their hands' of messy situations and forget that it is their duty to review the facts and to make an independent determination of the issue. 105. 335 (1951). Justin. in a 1950 decision: 77McCoy. 268 (1948) . 341) : "But if such reasoning is carried too far it can vitiate that part of a union contract which provides for a review of disciplinary actions. . cf. Arb. he will not shrink his responsibility to weigh the facts honestly. 265. 17 Lab. In the case last cited. the very clause in the parties' Agreement which brings the arbitrator into the picture is there to provide for a review of Management's decisions in such matters. 20 Lab. Stockham Pipe Fittings Co. Arb. 19 Lab. In other words. Walter Kidde & Co. Inc. 10 Lab. Arb.. 54). Soc. Where it is held that the arbitrator has the power to modify discipline (see Platt. 447. the employer has the burden of proving "just cause" for the discharge. The union. In the last analysis. Arb. unfairness. then. Cities Service Oil Co. after recognizing and adopting the McCoy approach... August. 658 (1953) . 13 Lab. Esso Standard Oil Co.. It is then the union's task to bring in evidence concerning the employee's seniority. Arb. As one arbitrator puts it. any inconsistencies of management in disciplining employees for offenses of this type. he must prove that "the punishment fits the crime. Few such disciplinary actions are taken without the presence of certain emotional factors which should be taken into account. the burden shifts to the union to show that the penalty was assessed in an arbitrary. And if the arbitrator is worth his salt. 28.. Arb. 1947. 65. Arb. 653. In other words.. his family status (where such is relevant).
beyond the scope of this paper. the criterion will be in the judgment of the arbitrator. since presumably it knows the precise grounds for its claim of excessiveness. nakedly stated. is completely valid. and show that there are no mitigating circumstances sufficient to affect the result. could thus shift to the union the burden of showing the excessiveness of a penalty of discharge. the employer has the obligation of showing that the penalty assessed was just and proper under all the circumstances. require the employer to prove the "universal negative".. In cases in which the collective agreement contains a schedule of offenses and remedies agreed to be appropriate. Armen Berry Casing Co. 78 Smith. (Emphasis added)78 From this point of view. This involves the necessity on the employer of showing both the infraction of some established rule of employee conduct and the propriety of the disciplinary action taken. a question not easily answered. if the union claims that the discipline imposed is inconsistent with the degree of discipline imposed in other like cases. Arb. 17 Lab. Indeed. of course. no one would argue that an employer. 179. is. 181 (1950). it is usually in by far a better position to do so. the schedule itself may provide the answer. On the other hand. More commonly. and that the union must then produce evidence to show that the discipline was improper ignores the commonly accepted proposition that there must be some proportion between the punishment and the offense. when the collective agreement between the parties protects employees against discharge where there is not 'proper cause'. a result of undesireability equal to that in cases in which such is required of the union in proving lack of just cause. of discharge. The more reasonable view would seem to be that the union should bear the burden of proving such circumstances. It can be argued that neither of these positions. to the manner in which the community at large regards such offenses. of course.1959] GRIEVANCE ARBITRATION In a discharge case. it is well accepted that the burden of justifying the discharge or other discipline is upon the employer. Further examination of this and similar points is. it should be required to show which cases it has in mind and the fact that they actually are similar to the one in dispute. in this case. . Indeed. 7sa What is "misconduct prima facie meriting discharge". however. For example. giving due effect. Any other procedure would. in effect. merely by showing a trivial tardiness by an employee. To say that an employer need only prove some act of misconduct. when the employer has produced evidence sufficient to establish the commission of an act of misconduct prima facie meriting discharge/7sa he should not be required to go further. and to the fact that the determination of disciplinary penalties is generally a management function. The point of view which places on the union the burden of proving excessiveness of the penalty fails to take account of the fact that not all breaches of discipline warrant extreme penalties. and was consistent with disciplinary action taken in other cases. however.
Arb.. 83 Ibid. and Feinberg. Grayson Heat Control." (4 Lab. 88 Ibid. 1041. where the union alleges discrimination. Arb. Arb.. Hampton. See also McCoy. a strong case must be made out before an arbitrator would be justified in attributing the discharge to an alleged motive to discourage union activity. 2 Lab. where the union produces "substantial evidence justifying a conclusion that the employer is opposed to the organization of his employees or has shown a previous hostile atitude to a labor organization representing his employees. Northwestern Bell Telephone Co. Arb.. 19 Lab. 1042-1043 (1947). 8 2 and more than mere "hints and inferences... 335. 346 (1946) . 87 Prasow. Arb. . American Zinc & Chemical Co. 715 (1947). Arb. 520 (1944) . 4 Lab. 370 (1948). the union must prove that such is the case. 922 (1947) . Arb. Arb. 314. Stenchever's of Hackensack. the same thought process is suggested in Reynolds. Arb.. Co. . 789...7 9 or persecution 0 in discipline cases. Arb. 84 Abernethy. 541 (1946): "." (2 Lab. at p. 7 Lab. 4 Lab. 6 Lab. Keystone Asphalt Products Co.. Inc. Arb. 6 Lab. Ltd. However.8 5 Nor is it sufficient to show that the employer has treated several employees in a disparate fashion: . 338 (1945). 663 (1947). 3 Lab.8 4 There must be more than a mere showing that the dischargee was an active union member. ' 87 some arbitrators have held that this is sufficient to shift the burden of proceeding with the evidence back to the employer on the issue of discrimination in the individual case. Arb. Arb. 43 C. at p. Arb... American Agricultural Chemical Co. 320 (1946). 792 (1947). 8' specific. Allen. 9 Lab. 82 Aaron. Pan American Petroleum Corp. 2 Lab. Arb. Because of the seriousness of the charge. 7 Lab. Arb... Arb. as distinguished from evidence merely creating a suspicion or amounting to no more than a scintilla. Scarborough. 56 (1956): "Substantial evidence means evidence which a reasonable and unbiased mind might accept as adequate to support a conclusion and affording a substantial basis of fact from which the fact in issue can reasonably be inferred. King.. 2 Lab. 770 (1946) . Indiana Railroad. 80 Ziegler. 6 Lab. Reynolds. Inc. Arb. if the union asserts that the true reason for the termination of the grievant was his union activity. it is incumbent upon one who charges that a certain act is improperly discriminatory to prove that the two persons and two situations in respect to which different actions were taken were in fact so similar that only similar action would have been 86 fair and proper in both. 85 Cheney. 544). 110-111 (1947). Burden of Proving Discrimination or Absence Thereof While the employer is required to prove facts constiuting "just cause" for discharge. arbitrators consistently hold that the union bears the burden of proof. 4 Lab. 3 Lab.. 598 (1946). . or equally supporting inconsistent inferences. Arb. 70 (1946). Inc. 8 Lab. Inc. 7 Lab. 111 (1952) .. Arb. Inc. Submarine Signal Co."' 3 or bare assertions. Mitchell Camera Corp. 81 Babb. 65). 107. 3 Lab. Cole. Flintkote Co. 86 Updegraff. Arb. 90 (1946) . Justin..MARQUETTE LAW REVIEW [Vol. 8 S9Doyle.. Irvington Varnish & Insulator Co. Grey Advertising Agency. Vickers. 789 (1946). 3 Lab. Douglas Aircraft Co. Mack Mfg. In other words.. Columbian Rope Co.. Kaiser Company. it has been held that proof of discrimination must be "substantial". Indiana Railroad.. Elson.
. since such cannot be presumed in the absence of evidence. Ex-Cell-O Corp. 9 The National Labor Relations Act has varied this rule only to the extent of prohibiting employers from discharging or otherwise discriminating against employees for engaging in activities protected by that Act. 659 (1953). However.-C. VIII. Arb. however.S.W. and his retention is entirely within the discretion of the Company. 4 Several other arbitrators. United States Steel Corp. State Board. in the absence of an agreement to the contrary. 21 Lab. A. 95 R. 95 Under these decisions also. 854). Art.. 92 This has the effect (absent a charge of unlawful discrimination) of leaving unimpaired the management right to discharge probationary employees for cause of any kind or for no cause at all.W. 96 the burden of proving arbitrariness or caprice rests with the union. 770 (1946). 89 Associated Press v. Arb. 96 Cases cited supra note 95. 399 (1956) . provides: "The Company may discharge or transfer employees at any time during the probationary period. 565 (1952).A. 93 Q Some arbitrators recognize this rule and decline to examine the facts underlying the discharge of a probationary employee. U. Inc.S. 747 (1949). See also.9 0 Most collective bargaining agreements provide that the employer may discharge employees only for "just" or "proper" cause. or no cause at all. Nichols. and Local 248. Co. Komaroff. 90 Cases cited supra note 89.. 91 It is usually. 13 Lab. rests on the union) . Flintkote Co. 19 Lab. any claims of discrimination in connection with the transfer or discharge of temporary employees may be taken up as a grievance." 94 Shulman. at p. Arb. 853 (1946): "Discrimination is not established by showing that the cause asserted is not a good one or is not supported by the evidence or rests upon erroneous findings of fact.I. National Labor Relations Board. sec.I. Ford Motor Co. however. .. Conn.O.. but also for employer arbitrariness or caprice." 93 Paragraph 245 of the 1955-1958 Agreement between Allis-Chalmers Mfg. v. 92 For example. It is beyond the scope of this paper to evaluate the substantive validity of these approaches. is more explicit: "A probationary employee has no seniority rights.O. North American Aviation.19591 GRIEVANCE ARBITRATION D. Co. 950 (1956). 103. If this does not appear expressly. some arbitrators have shown an inclination to hold that it is implied in other terms of the agreement. 4 (b) of the 1955-1958 Agreement between Ford Motor Company and the U. 6 Lab. provided in the agreement that an employee does not acquire the right not to be discharged without cause until passage of a probationary period. an individual not hired for a definite term may be discharged by his employer at any time.. of course. bad cause. Arb.-C. 91 For example. Atwater Mfg. 301 U. 351 U. Burden of Proof in Discharge of Probationary Employees As the law stands. Cole. for good cause. Arb. 132 (1937). 229 F. Smith. Arb." (6 Lab. denied. 2d 396. hold that the discharge of a probationary employee may be set aside not only for wrongful discrimination. cert. unless the case reveals an element of illegal discrimination (the burden of proof on this latter point. 3 Lab.A.
709... National Carbide Co. Arb... Burden of Proof in Cases Involving Discipline Less Than Discharge While arbitrators agree that the burden of proof in a disciplinary discharge case rests on the employer. and Warns. misinterpreted the evidence or disciplined grievants according to different standards of performance than other employees similarly situated. Platt. there is disagreement as to whether the same considerations should extend to cases in which the disciplinary penalty is less than discharge. A.. Firestone Tire & Rubber Co.MARQUETTE LAW REVIEW [Vol.. 181 (1950). Arb. 245 (1956). 99 Warns. 98 On the other hand. Maggs. 633. showed bad faith. Most arbitrators simply state that the rule is the same: the employer bears the burden of proving justification for any discipline." For the above reasons. The other five appear to have equal relevance to both kinds of situations: in neither case should an employee be required to prove the "universal negative". whether discharge or something less severe. Arb." (Ibid. it is one which is difficult to defend on principle. 242. 177. 14 Lab. See Ooa Cf. 711 (1956). 27 Lab. discipline less than discharge is involved. Hilpert. Inc. Of the six arguments most commonly advanced to sustain the imposition of the burden of prof on the employer in discharge cases. it has been stated. the better rule would seem to be that the same "rules" should be applied in minor discipline cases as in discharge cases. in neither case should the employee "be considered a wrongdoer until proof establishes his guilt".. Walter Butler Shipbuilders. 2 Lab.. it is generally held that the burden is on the union to prove that the company lacked reasonable ground for their decision to discipline the employee. Joseph Lead Co. St. supra note 78a. Arb.. 10° only one. however. 9s Scheiber. The employer should be required to prove misconduct prima °° facie sufficient to sustain the degree of discipline imposed . 179. Inc. C. 24 Lab.. is clearly inapplicable to cases involving a milder penalty. 17 Lab. Arb. & C. A. 408 (1955). in both kinds of case the existence of "just cause" is obviously affirmative defense. Arb. Co. 178 (1956). :o0 supra notes 56-61. Sayles Biltmore Bleacheries. the "economic capital punishment" argument. 7 This has been held to apply even in the case of a simple reprimand. 538 (1955) . Lockheed Aircraft Corp. "More specifically then. Inc. 43 E. Livengood. Gorder.l a the R. in each kind of case there is equal basis for requiring the "extension of scientific management to industrial relations" and requiring the employer to "retrace the process of discipline. 26 Lab. Warns continues. Armen Berry Casing Co. cf.. 143 (1951). 24 Lab. "Where. Arb. 27 Lab. I must decide whether the Union has proved that the Company in these grievances lacked reasonable ground. Arb. 138. 16 Lab." 99 While the latter point of view is one frequently pressed by employers (even those who would concede the validity of the opposite rule in discharge cases). Smith.) See also. Arb. Dayton Malleable Iron Co. 635 (1944). 552 (1950). 97 .
Arb. 562. Had he been willing to explain the reasons for his absence." record. citing Beckman v.E. 281. Arbitrator Seward states (at pp. 136.. 278. Arb. The grievant in this case has declined to give any explanation whatsoever of the reasons which required that he be 'out of town' on the night in question. In some cases it has been held that the burden continues to rest on the employer.1959] GRIEVANCE ARBITRATION union should be required.. we have no alternative but to uphold the discipline as .. This the Company has failed to establish"' (11 Lab. however. the Board would have been in a position to consider them and decide whether or not they constituted 'just cause' within the meaning of the Agreement. 561 (1957) . there are several interesting situations demonstrating its application. Blair. he assumes the burden of proving that he had reasonable and just cause for so doing. F. Hertner Electric Co.. 912). George D. 0 2 What appears to be the more logical view. there is a problem of who must prove the presence or absence of "good cause" when such is alleged. However. Goodrich Co. Arb. . 559. Arb. Mississippi Lime Co. 29 Lab. in American Steel & Wire Co. Arb. See also. Co. 11 Lab. "To support Captain's discharge the Company had the burden of proving that during his absence Captain devoted the major portion of his time not to resting and sleeping at home but to the operation of his restaurant and doughnut business. 12 Lab. Tennessee Coal Iron &R. if such is in issue. is that once the employer has proved that the employee has been absent an excessive number of times.R. to show whatever mitigating factors it claims render the discipline excessive. B. 283 (1955). 281. On the present properly imposed. 25 Lab. and that he must prove as part of his case that the absence or absences relied on were without justification or reasonable excuse. the claim that a man was wrongfully discharged despite making 'reasonable requests' and 'excuses' requires that he establish the reasonableness of his requests and the truth of his excuses for being absent from work. 102 Kates. at p. The latter having affirmatively asserted sickness under all the rules of procedure must be expected and required to offer proof of it. in which case a jury instruction to this effect was approved. 283 (1955). where management's prerogative is thus qualified by the agreement. Garrett. 64 N. 101 909 (1948). 25 Lab.' 0 ' However. 564-565 (1956) . 2 Lab. One of these is the case of discharge or other discipline for absenteeism. Arb. 47 (1948). 279 (1946) and Seward. To hold Jaffee. Ellis & Sons. F. 66 Ohio St. It would be obviously wrong to require that the employer disprove a vague and undefined claim of sickness by an employee. Arb. 48-49): "When an employee absents himself from work without permission. Burden of Proof Problems in Specific Discipline Cases Assuming the general "rule" that the employer must prove the existence of "just cause" for discipline. the burden of going forward with the evidence shifts to the employee • . Updegraff. All agree that in such case the employer has the burden of proof just as in any other discipline case. Hertner Electric Co. 62 (1902). however.. Kates. 27 Lab.. where the agreement or practice of the parties excuses absences where there is "good cause" therefor. Arb.
somewhat difficult to justify the holding that the employer must prove the inexcusability of the employee's absence from the plant.. that it was given by someone authorized to do so. 564. in his reasonable belief. it seems well established that an employee may decline a job assignment with impunity where the performance of it would. 105 Hilpert. subject him to an unusual hazard to his life. therefore. To require the employee to establish that his claim of illness is well founded is only to require proof of the person most likely to be in touch with all the evidence and be able to produce it. Where a strike has occurred in violation of the labor agreement.. still this is a fact which is peculiarly within the knowledge of the absentee himself. It is. 4 Lab. the employer is usually held to have the burden of proving that the order was given. when the employee has credibly testified to facts which constitute an ecuse for his absence. Arb. Arb. Shipman. Firestone Tire & Rubber Co. 1°5 If an employee asserts in a disciplinary proceeding that such was the basis for his refusal. Arb. 559. cf. 103 Jaffee. On the other hand. arbitrators appear to agree that the employee (or the union in his behalf) must proceed to prove that he reasonably believed that obe0 1 6 dience would have placed him in jeopardy. Rathbun."' to prove that the absences were nonetheless for "good cause" (if such is a defense) . Arb. limb or health. 571 (1947). Ingersoll-Rand Co. 106 Ibid.MARQUETTE LAW REVIEW [Vol. 7 Lab. 16 Lab. if his claim is correct. Mississippi Lime Co. In these latter two cases. Clearly this is why it is established procedure to require the absentee employee to prove his excuse when its correctness is challenged. that the employee was in a position to hear the order. . Arb. 104 Updegraff. St. 43 otherwise would permit the absent employee to assert any fantastic reason for absence which might occur to the imagination and challenge the employer to disprove it. Joseph Lead Co. National Zinc Co. 564-565 (1956). 562. the burden of proceeding should surely shift back to the employer to show that the excuse was inadequate or that the testimony was untruthful. Arb.. He is likely to be defeated on such an endeavor only if his claim is not correct. Ellis & Sons... Emery. Waterfront Employers' Ass'n. However. the arbitrator makes the same rulings where the union claimed that strikes were excusable because of unsafe working conditions. 29 Lab. 138 (1951). In such case. 19 Lab. 234 and 4 Lab. 561 (1957). Arb. 552 (1950) . that the order was within the scope of the employment.. 890 (1953). etc. 14 Lab. Another interesting example of the operation of burden of proof is the case of discipline for insubordination. and he should prove the truth of the allegation. Platt. George D. 888. 242 (1946). Arb. 27 Lab.1 03 Professor Updegraff states this view: While it can be argued to the contrary (where the contract or the parties' practice permits) that lack of excuse is an essential part of the employer's case.
152. Arb. Arb. it is more than quantitative probability..""14 This means that he must introduce evidence sufficient to convince the tribunal of the actual truth of the proposition urged. this means such proof "as satisfies the judgment and consciences of the jury.. the state is required to prove guilt "beyond a reasonable doubt" or "to a moral certainty". Lee Line Steamers v Robinson. 113 McCoy. 45 So. Arb.. 153 (1948)."' In a fighting case. 112 Hepburn. cf. Wolff. Co. in criminal prosecutions. charged with the duty of taking preventative action. "13 Morris v... 11 Lab. McLouth Steel Corp. supra note 107. Quantum of Proof Required in Discipline Cases The general rule in civil litigation is that the party who carries the burden of proof on a particular issue must prove the point by a "preponderance of the evidence. that in an assault case the burden is on the defendant to 3 plead and prove any claim of justification. 30 Lab. that the crime charged has been committed 107 McCoy. 11 Lab. 761. Southern Bell Telephone & Telegraph Co. Co.."1 G. 0 11 Bowles. 10 Evidence of the presence of an individual in a small group of wrongdoers may be sufficient to cast upon him the burden of showing that he was not an active participant. and requires at least sufficient evidence to remove the matter from the realm of conjecture. "14 Jones. Lone Star Steel Co.1959] GRIEVANCE ARBITRATION most arbitrators hold that an employer may elect to discipline all participants. Shell Oil Co. 29 Lab. to the accepted rule in litigation. the employer has been held to have the burden of proving (as part of his principal case) that the employee was an aggressor and was not merely defending himself. 186. McClellan. 356 (1957). 678 (1948). it appears to be the majority opinion that actual leadership must be proved by the employer. however.. Arb.. Rheem Mfg. 559 (6th Cir. 764 (1955). 639. John Deere Ottumwa Works. If it elects the latter. 1914). may be sufficient to shift to the dischargee the burden of proving that 0 he fulfilled his duty. 1"5 Babb. 24 Lab.. . 154 Ala. Arb." 2 This approach seems somewhat opposed. Arb. 641 (1908). Arb. 218 Fed. however. Arb.. extensively quoted supra note 22 a. however. Allis-Chalmers Mfg. when the disciplined employee asserts that he was justifiably defending himself. Allis-Chalmers Mfg. Mueller Brass Co. Co. Evidence in Civil Cases §5 at 5 (3d ed. 10s McCoy. 277 (1949). 675. 3 Lab."' On the other hand. 285. 273. Co. so that actual belief exists in the mind of the tribunal notwithstanding any doubts that may linger there. 87 (1947). Arb. Consolidated Vultee Aircraft Corp. and that circumstantial evidence may be all that is available. 13 Lab. 8 Lab. 26 Lab.. Rheem Mfg. as reasonable men. Inc. 519 (1958). 1 9 It is recognized that proof of leadership in a wildcat strike is often most difficult. 187 (1956). 10 7 or only the leaders. 1914). 85. 293 (1946). Kelliher. 109 Updegraff. Bartlett. Babb. 08 Evidence that the dischargee was a union official.
Horvitz and Kelliher. General 120 Hale. 486. Copco Steel & Engineering Co. involving a discharge for struggling with a supervisor. §192 at 269-271. op. 196 (1945) (Breach of nostrike clause) .. Indiana Bell Telephone Co. Co. Arb. Arb. In discipline involving misconduct which is not also a violation of the criminal law.. " 0 The same rule has been held to apply in the case of minor crimes. Hale. 148. Howell Refining Co. 117 or by "satisfactory and convincing" evidence. 116 Jones.. 119 Prasow. 137. Professor Murphy stated (21 Lab. 481-482 (1955) . 491 Refractories Co. and Fisher. §5 at 5. Since arbitration is in the nature of a civil proceeding. at pp. Armour & Co.. cit. 150-151 (1956). Arb. disrepute and evil as the label of 'thief. 482 (1956) in which case it was held that an employer was required to prove an assault off company premises merely by a preponderance of the evidence. But it is a fact which cannot be ignored. contra. or 1 some similar standard. Brown. Douglas Aircraft Co.""' When the commission of a crime is directly brought into issue in a civil case. 2 Lab. 398 (1946). 906. after holding that the 121In Fruehauf Trailer Co. Arb. Arb. also see. 866 (1956). regardless of their particular nature.. 26 Lab. United Parcel Service. The use of obscene language.. Arb. supra note 114. 6 Lab. 27 Lab. Wagner. 11 It need not be proved beyond a reasonable doubt. Borg-Warner Corp. Gilden.. Smith. Arb. Arb. Arb. 148 (1956).. 7 Lab. 7 Lab. assault and battery. Kroger Co. and so satisfies them as to leave no other reasonable conclusion possible.. 'Is Id.' This may be good or bad. But such is not uniformly the case: indeed. arbitrators have held that proof beyond a reasonable doubt was required to sustain a discharge. 141 (1956). where the discharge was for intoxication. Inc. 27 Lab. Most of this conflict is found in cases involving discipline.MARQUETTE LAW REVIEW [Vol. 729 (1955) . Arb. 480. there is much confusion and conflict in the reported cases on the subject. 608 (1948) : "It is the arbitrator's opinion that he cannot properly uphold these discharges unless the proof is precise and establishes beyond a reasonable doubt that the persons were guilty of the offense. 21 Lab. 194. there is a fair amount of agreement that the offense need not be proved by more than a preponderance of the evidence. 27 Lab. Also see. 728. Arb. Marlin Rockwell Corp. Parker. Wagner. 292 (1947). negligence. 863. Somers. Arb. all criminal type cases are not alike and do not carry the same effect of disrepute. 147.. 11 Lab.. 119 we should expect to find the requirement that parties prove their claims and affirmative defenses by a preponderence of the evidence. 21 Lab. Dworkin. Dworkin. 601. 627 (1947) ... 832 (1954). principally because of the economic effect of the dis12 ' charge upon the employee. 17 Id." See also. 43 by the defendant. employer was required to prove a charge of theft beyond a reasonable doubt. even in some cases in which there is no question of criminality. 908 (1955). Borg-Warner Corp. A. . Inc. 27 Lab.. Tri-United Plastics Corp." 122 Shipman. Arb. Arb. 22 Lab. involving discharges for strike violence. 25 Lab. 27 Lab.. 835-836): "Obviously. Arb. Arb. 470. American Smelting & Refining Co. the prevalent American view (contrary to the rule in England) is that such need only be proved by a preponderance of the evidence. 24 Lab.. 2 Lab.. Homestead Valve Mfg. §195 at 274-276. Gaffey. 410 (1953). R.. Bethlehem Steel Co. Feinberg. 567 (1954). (1956). 24 Lab. Arb. Kharas. Arb. slander and many other types of conduct which can be labeled as criminal do not ordinarily carry the contempt. Bendix Aviation Co. Arb. 2 ' However. not involving moral turpitude. Rheem Automotive Co..
not for a light penalty.. or the equivalent.. 27 Lab. Beck Shoe Corp. 302 (1948). Fruehauf Trailer Co. S. 27 Lab. 21 Lab. 212. the arbitrator has simply stated that when such a charge is made. 863.. Somers. 124Trotta. However.. at p. 4 Lab. Arb. 11 Lab. 728 (1946) (Dishonesty: "preponderance of the evidence to sustain such charge"). The evidence points to her (1957) (Stealing: "preponderance of the credible evidence"). 12 7 Because of the informality of arbitral procedure. 728. at p. 525. arbitrators have differed with respect to the standard of proof required. Cannon Electric Co. it is sufficient to justify a disciplinary action by the company. Cahn. 832. 301. "a reasonable doubt as to guilt calls for acquittal.. arbitrators have held that charges of theft and similar offenses be proved beyond a reasonable doubt.. Arb. that Arbitrator Kaplan meant "beyond a reasonable doubt" when he wrote "preponderance of the evidence. Arb." Since-the latter is a practicing attorney. Arb. 273. and has required that the charge be proved by a preponderance of the evidence.. 720. 214 (1944) . 9 Lab.. Arb. Ralph E. 24 Lab. 274 (1947).." See also. the employer has a greater obligation of 4 12 proof than in the usual discharge case. held (11 Lab. R. Arb." This result is reached even though the arbitrator states (ibid. after stating that the reduction of the penalty indicated the existence of reasonable doubt in the employer's mind. While it is true that the evidence is circumstantial and that grievant's guilt is not established beyond any doubt. In some instances. Arb. 699 (1949) . Arb. Arb. 1007 (1948)." 123 Marshall. in an earlier case." 125 Bernstein. 1009). 534. Conn... Jones. Inc.. 866 (1956) (Theft: "a greater burden on the Company than is usual or customary in arbitration") .. Amelia Earhart Luggage Co. A. this inference is somewhat questionable. 21 Lab. Arb. Arb. In one case. 832 (1954) stated. Lesser.. the Connecticut State Board had.. in Fruehauf Trailer Co. State Board..) "I am not entirely satisfied of the innocence of these men. Arb. 12 Lab. 441 (1950). 14 Lab. 573 (1954): "The evidence [of theft] that has been presented against the grievant is convincing to the undersigned . Arb. 906. A. In International Harvester Co. By way of comparison. Jones & Laughlin Steel Corp. 24 Lab. 879 (1957). 721 (1955). 729 (1955) . American Saw & Tool Co. General Refractories Co. Hale. 726. 2 Lab. 127 Warns. (Dishonesty: "clear and strong" evidence) .1959] GRIEVANCE ARBITRATION In cases involving misconduct which is at the same time a serious crime. is charged. 29 Lab. the arbitrator has recognized that arbitration is in the nature of a civil. 25 In several other cases. 12 This standard has also been applied in what may be non-criminal cases. one 149-150 (1947) (Discharge for incompetency). Wolff. Marlin Rockwell Corp. Arb. Kaplan. where an element of dishonesty is involved. 481-482 (1955). Arb. 629. Cafe Romillon. 908 (1955) . a number of arbitrators have held that criminal standards of proof are required in discharge cases where a crime of moral turpitude. Myers Co. e. Arb. 536 (1954). Prasow. 836. after he had discharged several employees for insubordination. required that non-criminal misconduct be "clearly established before a penalty can be justified.. Professor Murphy. Kroger Co. Marlin Rockwell Corp.. 437. 527 Cleaning & Supply Co. Concerning the case last cited. the employer relented and commuted the penalty to a two day layoff. in Aviation Maintenance . Arb. The union nevertheless pursued the matter to arbitration.. United Hosiery Mills Corp. Arb. 123 In other cases. 630 (1956) (Dishonesty: "substantial evidence"). Little Falls Laundry Co. Rheem Automotive Co. Smith. such as theft.g. 25 Lab. Arb. 11 Lab. 126 Murphy. Arbitrator McCoy. Industrial Overall Dry guilt. 22 Lab... 470. 28 Lab. falsification of timekeeping records. 24 Lab. the arbitrator required that a charge of pilferage be "demonstrated conclusively".. not a criminal proceeding. Chrysler Corp.. Arb. 834-836 (1954). 23 Lab. Weisenfeld.
at p. 21 Lab. 481-482 (1955). the result is generally loss of property (fine) or liberty (imprisonment or probation).13 Professor Murphy has developed an interesting comparison between discharge for criminal misconduct and prosecution for crime: The effects of a finding of guilt in a charge of stealing in a judicial proceeding are generally in terms of fine.."1 30 has made arbitrators understandably conscious of a social responsibility not to regard such charges lightly.' Professor Murphy also points out similarities in the degree of social stigma which will accrue upon a finding of guilt in each type of tribunal. 24 Lab. General Refractories Co. 43 arbitrator has held that the standard of proof in theft cases is even higher than the criminal court standard for the same kind of case. Arbitrator Aaron required that proof of falsification of an employment application be "clear and convincing. 470.. 268 (1947). however. 1 9 The principal argument relied on is that discharge is the equivalent of "economic capital punishment". Arb. Arb. quoted with approval in Hale.'' The conclusion that misconduct of criminal proportions must be proved by evidence beyond a reasonable doubt is a somewhat questionable one." '2S Murphy. 832. It is possible to argue that most of the similarities that Professor Murphy emphasizes exist between cases of this type and criminal prosecutions are not entirely significant. .MARQUETTE LAW REVIEW [Vol. or loss of liberty (as where the guilty person is penalized but kept on a job under probationary rules which restrict his liberty). 12 s The rationale of the cases holding that criminal misconduct must be proved beyond a reasonable doubt is based in part upon the same reasoning that has led arbitrators to impose the burden of proof on 2 employers in discharge cases generally. 133 Fruehauf Trailer Co.. 834-835 (1954). 22 See supra notes 56-61. supra note 132. or loss of freedom to get another job (to the extent that future employers3 will not hire one who has previously been 2 discharged as a thief. Fruehauf Trailer Co. 835. 832. 835 (1954). 21 Lab. 24 Lab.The effects in a finding of guilt in an arbitration proceeding are generally loss of job (corresponding to the property loss). 470. combined with the certainty that "the social effects upon and the stigma attaching to an employee found guilty of a criminal offense are far greater than those attaching to an employee guilty of a non-criminal offense. It is probably possible to fit many other kinds of disciplinary (or even non-disciplinary) discharge into the same pattern. Arb.. For example. Fruehauf Trailer Co. Arb. 8 Lab.. 481-482 (1955). 330 Hale.. and represents the most sever penalty an employer can impose.. This belief.. 132Murphy. 261. imprisonment or probation or suspended sentence. Arb. General Refractories Co. a discharge for extreme disloyalty to the employer (disclosure of trade secrets) can probably be compared to a criminal prosecution on most of the Corp. 231 See cases cited supranote 126. .
VIII TRANSFER CASES In the absence of an express contract provision. the employer should be required to produce evidence sufficient to convince the arbitrator of the justness of the charge. in fraud cases a somewhat higher degree of proof is required than in ordinary 3 cases. 35 . even in a civil court case. It is conceivable that this kind of standard will vary with the seriousness of the case. An employer who could successfully sue an employee for an intentional conversion of the employer's property should probably not be required to retain the individual in his employ merely because a case cannot be proved beyond a reasonable doubt. 232 Minn. 295 Mass. Where an employer can show 'by a fair preponderance of the evidence that an employee is guilty of a theft. the employer should. In answer. The better view would seem to be that in order to prove a charge of theft or the like. when a charge is made that a party has committed a crime. iia Furthermore. 1. 2d 248 (1936) . Indeed. 155. 135a Cf. but only by a preponderance of the 1 35 evidence. In this connection it is interesting to note that the courts uniformly hold that misconduct sufficient for the disbarment of an attorney need not be proved beyond a reasonable doubt. In a proceeding which is hoped to be relatively free of at least the more distasteful legal technicalities. but this result is inevitable in any event. In re Mayberry. yet it would probably not be required of the employer that he prove the offense beyond a reasonable doubt.1959] GRIEVANCE ARBITRATION grounds cited above. 44 N.E. 3 N. As pointed out above. On the other hand. it is generally 134 Supra note 114.1 4 It can be forcefully argued that no higher standard should be used in the quasi-civil procedure of grievance arbitration. not be required to run the continued risk of the employee's dishonest tendencies merely because there exists some possibility of the employee's innocence. some account must be taken of the natural reluctance of the trier of fact to sustain such a charge unless the evidence is quite satisfactory. it is probably not sufficient to point out that the courts in civil cases involving similar issues do not reach this conclusion. In re Rerat. What is perhaps a better argument against the use of the "beyond a reasonable doubt" standard of proof in grievance arbitration cases is that it is simply inappropriate. 2d 273 (1936).W. it is somewhat disquieting to encounter one of the most rigid legal concepts extant. the argument that proof beyond a reasonable doubt should be required because of the social stigma attaching to a discharge for theft or like offense is a potent one. the standard of proof in civil litigation when commission of a crime is directly in issue is proof by a preponderance 3 of the evidence. supra note 118. perhaps.
provided he does not run afoul of any applicable federal or 136 It seems fairly clear that the union would have the burden of proving other facts essential to the claim: for example. to detailed and complex systems involving job-bidding. 43 some sort of limitation upon the employer's otherwise unbridled discretion. 2) the demotion of a senior employee while a junior employee is permitted to continue at the same sort of work as they performed together previously. These contract provisions are generally in terms of a varying degree of recognition of seniority. some contract provisions tend to be relatively similar in substance. aptitude testing and innumerable other intricacies. In General Problems in the transfer area tend to be rather stereotyped in their factual composition.MARQUETTE LAW REVIEW I[Vol. However. there are involved at least some principles which are accorded a degree of recognition by the arbitral profession. A. in addition. ability and/or capacity. in cases of the sort described above. ranging from a simple recognition of the management prerogative or a simple provision that all personnel moves will be made following seniority. though the exact phraseology may differ from agreement to agreement. rests. and 3) the transfer of a senior employee to a less desirable job (or shift) though at the same wage level. Consequently. the applicable contract provisions recognize seniority as a factor deserving of consideration. b) that the grievant is within the group of employees permitted by the contract to object (some contracts provide that only an employee within the same department or seniority unit may object to a promotion) .. the employer defends his action as being contractually permissible on the ground that the affected senior employee had less merit. ability or capacity than did the favored junior. or lack thereof. it is extremely difficult to draw generalized conclusions about burden of proof problems incident to the arbitration of disputes in this area. In view of the multiplicity of these arrangements. but subject its significance to moderation or elimination in favor of merit. bumping. and the differences in their applications. a) that a transfer has been made. is where the burden of proving ability etc. 3 ' In dealing with such problems. c) that the grievant actually is senior to the favored employee. however. for the purposes of this paper. There are probably thousands of different contractual transfer procedures currently in effect. Facts of this sort are usually undisputed. at least where the contract language recognized that an employer may allocate his workforce in any manner he wishes. while a junior is bypassed. Generally cases of this sort involve a union claim of contract violation because of 1) the promotion of a junior employee to the prejudice of a senior employee. On this basis an attempt will be made to make at least a cursory examination of the reported cases. Generally. . The principal problem.
or from bias. 27 Lab. Arb.. Arb. Prasow. 1 Prasow. demotion and lateral transfers will be discussed separately.. 17 Lab. Sylvania Electric Products Co. 13-14 (1947). Weber Showcase & Fixture Co. 13 Ralston. anti-union prejudice or a clear mistake. . Inc. However. 40.. 19 Lab. Todd Shipyards Co. Arb.. Arb. 630 (1947). Arb.. 310. favoritism.. Shister. International Paper Co. Ford Motor Co. These differences in the manner in which the dispute was submitted will account for some of the variance in the cases to be discussed. 4 Lab. 13 Babcock. in making the transfer. but in most instances. For example. 629-630 (1947).. Marshall. 37 As a result. 40-49 (1956). Inc. 340 Cases cited supra notes 137-139. that where the union challenges the validity of the criteria used by the employer in reaching his decision. 42 In evaluating the following materials. Lawrence Products Co. 402 (1952). under the same agreement and similar in nature... 705 (1955). management decisions in this regard will not be disturbed by these arbitrators unless there is evidence to show that the decision was quite unreasonable. 10 Lab. 205 (1951). 27 Lab. most collective agreements contain does not clearly indicate otherwise. 703. 627.. Arb.. Cases involving promotion.. 24 Lab. Pollard. though both disputes may be between the same parties. 600-601 (1946).' 10 It has been held.. 14' Prasow. 10 Lab. there is an obvious difference between a submission phrased "Was the employer arbitrary or capricious in determining that X was more qualified than Y?" and a submission asking. Arb. Arb. Myers. In the second there is more room for arguing that the burden of proof rests on the employer. 14 Lab. the manner in which the issue was raised at the hearing. 312 (1950) . 12. 498. 139 The practical effect on this approach is to place upon the union the burden of proving that the employer was arbitrary or capricious etc. Prasow. or the form of the arguments of the parties.1959] GRIEVANCE ARBITRATION state labor legislation. the burden shifts to the employer to justify the reasonableness 4 of the criteria and to demonstrate uniformity of application. 508-509 (1948). Arb. 3s Some labor agreements explicitly provide for this rule. or resulted from an abuse of discretion. 7 Lab. 627.. Eagle-Picher Mining & Smelting Co. Ashland Corp. Co. 49 (1956). Arb. 599. since it has been suggested that the same standards of interpretation and application are not necessarily interchangeable in the resolution of disputes concerning these three kinds of transfer. Owl Drug '37Prasow. many arbitrators hold that the determination of ability is uniquely a management function. 10 Lab. Weber Showcase & Fixture Co. Arb. however. "Was Y at least equal to X in qualifications for the open job ?" In the first submission. it should 'be kept in mind that the results in many of the cases cited are likely to be tied in closely with the phraseology of the submission agreement. the likelihood is that the arbitrator will hold that the union must prove arbitrariness. the rulings do not Todd Shipyards Co.
I. and refuse to disturb management's decision unless it is shown to be arbitrary. 773. Seniority has significance only when the merit. 1 45 Others take the position..O. Blaw-Knox Co. the Union of course realizes that as the party who presents the grievance. capricious or discriminatory." The latter case.A. 105.. Arb. 23 Lab. ability and capacity are 14 3 equal. 159 (1954). It should be noted that the General Motors language provides a standard of comparative ability. The contract provision quoted is the substantial equivalent of one construed by Arbitrator Shipman in Lionel Corp. 91. they have the responsibility of furnishing the arbitrator with 'proof' of elements essential to the claim of the breach by the Company."' These two types of promotion provision (one or the other appears in each of many thousands of labor agreements in this country) are not necessarily governed by the same considerations in determining the location of the burden of proof.. of the 1955-1958 Agreement between Ford 14 Motor Company and the U. as an essential part of its case. Arb. 145 Kelliher. Many arbitrators recognize the existence of the prerogative. 26 Lab. Grant." Copelof. ability and capacity of those competing for the promotion are equal. Whiting. 43 rest on such bases. Section 2. 779 (1956) .. see also cases cited supra notes 137-139. 107 (1954) . Co. 121 (1947). in effect. 484 (1946) . those which contain explicit provision for promotional transfers fall into two categories: the so-called "General Motors" type and the "senior qualified employee" type. Arb. B. Arb. Arb. 295 (1946). involved a lateral transfer rather than a promotion. Ingram-Richardson Mfg. in an exercise of his claimed management function.1 46 language. 11 Lab. Disman. etc. The burden of proof on these latter points is on the union.. 313 (1948). 426. ability and capacity. North American Aviation. and that the choice was made in good faith. employees with the longest seniority will be given preference. . Republic Steel Corp. Borg-Warner Corp. 148 For example. 27 Lab. 23 Lab. has promoted a junior employee in the belief that the junior has greater ability. 3 Lab... that the promotion of a On the other hand. 230 (1950) . Monsanto Chemical Co. still other arbitrators hold. Article IV. 5 Lab.. The employer need only show that "careful and unbiased consideration was given to all the applicants. 7 Lab. however. Cf. 291.MARQUETTE LAJW REVIEW[ [Vol. Arb.. 429 (1956): "On this point. but rather upon the convictions of the particular arbitrator as to how such cases should be handled. without explanation. Paragraph 63 (a) of the 1958-1961 Agreement between General Motors Corporation and the UAW-AFL-CIO provides.W. Arb. 14 Lab. Bemis Brothers Bag Co. must prove the existence of equal merit. Gisholt Machine Co. Arb. Warns. of Indiana. 96 (1947) . Arb. Selekman. 9 Lab. that the union. "In the advancement of employees to higher paid jobs when merit. The disputes arise when the employer. 482. Platt.-C. in construing the same kind of contract 143 See also.. McInerney Spring & Wire Co. Inc. Arb."' A sample of the latter type is the following: "The Company shall give preference to the employee with the highest seniority who can satis14 4 factorily perform the work of the vacant or newly created job. Inc. Promotions While contracts vary vastly. Reid.
666.. That is clearly not enough. Ford Motor Co. 374.. The supervisor must be prepared to state the basis for his belief and to support it. Arb. American Steel & Wire Co. Shell Oil Co.. 69 (1948). These and other aspects of personnel evaluation are exceptionally difficult of expression. Whitton. Hays.. In making its decision to thus deviate. management acts upon conclusions the basis for which are known completely only to itself. . Seward. Arb. particularly in the emotion charged atmosphere of the hearing room. even for a man practiced at expressing himself.. . Arb.J. McCoy. Arb. In response to this latter position. Diamond Power Specialty Corp.1959] GRIEVANCE ARBITRATION 169 junior employee is a deviation from normal procedure. Garrett. In order to satisfy this burden. concrete reasons. 10 Lab. on the supervisor's evaluation of the employee's willingness to apply himself to his tasks. 317. not merely to the employee's general char148 acter. 321 (1949) . 13 Lab. 3 Lab. 27 Lab. They must be able to support this belief with sufficient. United States Steel Corp. not by repeated assertion but by specific and understandable evidence-evidence which relates to capacity for the job in question. Arb. on the number of errors made by the employee in judgment and application. The late Dean Harry Shulman summarizes this position in a frequently quoted passage: Some members of management or supervision seem to think that it is sufficient for them to form and assert strongly the belief that one employee is superior to another. 12.. Avco Mfg. it has been held that the promotion of a junior employee ahead of an admittedly qualified senior employee must be upheld where nothing in the union's evidence suggests that the employer had any ulterior motive and the company's testimony as to the seniority [ability?] of the junior employee was convinc147 Frohlich.. A supervisor's testimony that he honestly believes one employee to be superior to another with respect to the promotion is certainly a factor to be considered. Arb. 15 (1949) . of N. 668 (1949). 2 Lab. . Arb. Perhaps it is these considerations which have led some arbitrators to be somewhat more tolerant than Dean Shulman in the treatment of supervisory opinions (at least where made in good faith): Under a contract promotion clause similar to the one in this case. either conclusive or significant. 628.. it can be argued that judgments of job ability are necessarily based on intangibles: on the supervisor's evaluation of the employee's eagerness and aptitude to learn. 453 (1947). 12 Lab.. 375-376 (1945). 760 (1946). Arb. 24 Lab. It is not.. Stouffer. As a result. Williams. Arb. 148 Shulman. these arbitrators hold that the employer must prove the superiority of the junior 147 before the promotion will be sustained. whether the circumstances make these errors excusable or inexcusable. Corp. Bartlett. 304 (1956). 14 Lab. 22 Lab. Republic Steel Co. there must be some aspect of tangibility to the employer's evidence. Public Service Elecrtic & Gas Co. particularly. 9 Lab. 630 (1955). however. Arb. Co. 188 (1953). Pennsylvania Salt Mfg. . Columbia Steel Co.
that he has been derelict in his duties. 7 Lab.. 124 (1947).. The lack of tangibility in the company's case is 1 49 irrelevant. 166-167 (1950). it does not seem unfair to place the burden of proof on the union. While different burden of proof considerations would seem to 149 Ebeling.. he is in the best position to make a judgment. 150 Compare. Arb. it may well be a factor in his removal. 43 ingly sincere. attitudes and capacities. If an arbitrator holds... by its nature. 9 0 For similar reasons. built up through experience and observation. it can be argued that the reasons for by-passing a senior employee are peculiarly within the knowledge of the employer and that he should demonstrate their existence and sufficiency. It will rarely (unless discrimination or favoritism can be shown. 627 (1948): ". the employer will be compelled to rely on the supervisory judgment in making the promotion and justifying it in arbitration. and that of all people concerned with the case. in addition to others mentioned above. Lionel Corp. to accept the Union's thesis here would amount to saying: so long as . It should not be assumed. he should perhaps take account of the fact that proof of human abilities and capacities through oral and written presentations is difficult. for the simple reason that these are not too common in industrial practice (although some employers use them). Arb. 624. Of course. and these should not be assumed) be to the advantage of the supervisor to promote the less qualified man. The employer will rarely be able to produce personality tests. 14 Lab. Such being the case. that the burden of proof in this kind of case should rest with the union. While it may be argued that the union is similarly hobbled in the presentation of its case. aptitude tests or fitness reports in aid of his case. it seems to the writer. compare. citing Reynolds. in a case involving the General Motors type of language. Arb. Hercules Powder Co. for taking the case to arbitration to begin with. exceeding a suspicion of contract violation. Arb. 163. at least. 121.MARQUETTE LAW REVIEW [Vol. 10 Lab. in the absence of countervailing evidence. This approach seems somewhat preferable. Chrysler Corp. Such judgment. But it must be assumed that the union had some palpable reason. of the employee's abilities. Shipman. it should be remembered that it is part of the supervisor's job to evaluate accurately the work and abilities of those working under him. that the employer has the burden of justifying his action in the first instance. 10 Lab. Conveying these impressions convincingly in the atmosphere of a hearing room is not easy of accomplishment. it should not be assumed in the absence of contrary evidence that the employer acted in disregard of his own interests. tends to be based on intangible impressions. In most cases. Reynolds.. 624 (1948). If he does not carry out this responsibility conscientiously. It is to the best interest of management to promote the best qualified employees. Hercules Powder Co.
In cases involving this second type of promotion clause. the determination of qualifications is a management function which may not be set aside in the absence of proof of arbitrary or capricious conduct. 8 Lab. Premier Metal Etching Co. Aside from its internal contradiction.. '5' make better judgments as to their relative abilities and aptitudes than could the supervisors (assuming good faith on the part of the latter). Blair. 15 And even when the management prerogative concept is not brought into the case. 153 Compare cases cited supra notes 47-49. 719 (1948). Cornsweet. Arb: 429 (1948)..153 secondly. International Paper Co. this type of provision is the equivalent of stating that the senior employee will be promoted unless he is not qualified. 56 In this second type of promotion provision. 19 Lab. therefore. 402 (1952). unfamiliar with the employees involved. the burden of showing lack of qualifications rests 54 with the employer. Berkowitz. 23 Lab. Pacific Gas & Electric Co. Compare McCoy. supra note 151. Arb. arbitrators frequently hold that the showing of greater seniority on the part of the grievant is sufficient to make out a prima facie case and to shift the burden on the question of qualifications to the employer.' 51 although. Rubber Co. .. Electric Boat Co. Pittsburgh Plate Glass Co.. as compared with the "General Motors" type." See also. Healy. 121. As noted above. Cold Storage & Warehouse Co. could Ralston. it may have some relevance in determining what qualifications are required for the job opening. PerryFay Co. U. provided that when the Union disagrees with the Company's judgment it may have the decision reviewed by a third party. be obliged to explain them . presumably. 363. Arb. '55 Shipman..1959] GRIEVANCE ARBITRATION apply to the "senior qualified employee" type of promotion clause. Kaplan. 6 Lab. therefore. On the other hand. 408 (1947). the "General Motors" type sets up a standard of comparative ability. 11 Lab. Lionel Corp.. Blair.. Arb. The fact that the promoted junior was markedly superior in ability is relatively immaterial. the proposition is defective in its faulty assumption that outside parties. In contrast to this. 4 Lab. Pittsburgh Plate Glass Co.. the Employer shall have the exclusive right to judge the relative ability of competing candidates for openings. Arb. some arbitrators hold that the union must prove the existence of the requisite ability as an affirmative part of its principal case. 61 (1947) . 557-558 (1954). 10 Lab. 556. 124 (1947). 366 (1946). 5 2 This can be justified on two grounds: first. Arb. there is a similar division of arbitral opinion on the subject. but only a question of whether the by-passed senior employee was qualified or not.S. he should. there is authority for the proposition that even under the "senior qualified employee" type. 7 Lab. Arb. This way lies general confusion.. Arb. 7 Lab. there is considerably greater room for argument that the employer should bear the burden good faith is shown. the "senior qualified employee" type raises no question of comparative ability. 58. 152Ross. Quincy Market.. 317 (1947) . 256 For example. Arb. 54 Compare cases cited supra notes 40-44. the basis for the employer's conclusions concerning grievant's qualifications is peculiarly within the knowledge of the employer.
Paragraph 262 of the 1955-1958 Agreement between AllisChalmers Mfg. Nor can it be said that it is not to the advantage of the supervisor to misevaluate a worker's abilities. and Local 248.MARQUETTE LAW REVIEW [Vol. since he may desire to reward the better.W. and some of the emotionalism normally associated with the discipline cases frequently creeps in. as in the promotion cases For example. 14 Lab. however. except in promotion cases. Arb. the Company shall consider length of service. after all. since the promotion of the more qualified employee will constitute a contract violation when a minimally qualified senior is by-passed. U. 15 As a result. express provisions in many labor agreements make it difficult or impossible to attempt arbitral review 7 in such cases. 253 (1950). not to speak of his earning power. Here the better view would seem to be that the employer should bear the burden of proving that the by-passed employee did not meet the minimum qualifications for the open job. 43 of proof. Republic Steel Corp.-C. 429 (1956). 426. particularly when the circumstances reveal that it would have been advantageous to do so." 158 Marshall.I. or to be assured that the higher rated job will be more competently and efficiently filled. there are very few reported cases dealing with this problem. 800 (1953). Lateral Transfers and Demotions Since lateral transfers (that is.A. "The Union may review any transfer. The third step shall be the terminal point of discussion. though junior. While evaluation of employee ability continues to be a management function management should have the obligation of justifying its action and showing that it has not abused its prerogative. Arb. C. transfers to another job at the same general wage level) ordinarily do not occasion an appreciable loss of wages or seniority standing.. a serious blow to an employee's pride. worker. No question with reference to paragraph 262 may be certified to the Impartial Referee. is one somewhat more prolific of dispute. It might even be said (in contrast to the General Motors type discussed above) that successful violation of this type of contract provision may well benefit the employer. a number of arbitrators. Warns. 15 .. Co. there would seem to be less impetus to disputes in this area." Paragraph 263 provides.. 27 Lab. BorgWarner Corp. provides that. Those few cases which are reported appear to agree that the burden rests with the union to establish facts sufficient to show a violation of the contract 58 The area of non-disciplinary demotion. Furthermore. A demotion is.O. utilizing the first three steps of the Complaint and Grievance Procedure for that purpose. Here it cannot be said that the employer should not be asumed to have acted to his disadvantage. 20 Lab. Here again. VWrallen. without regard to matters of discrimination or favoritism. "in making transfers of employes from one occupational classification or shift to another. International Shoe Co. Arb.. rather than hinder him.
Arb.. Marshall. 548. supra note 160. yet work satisfactorily. 471. 161 Hale. particularly in large industrial establishments. Inc. since it will rarely be to the advantage of the employer to reduce a capable employee of many years seniority (in addition to some of the other arguments cited above and in the section of this paper relating to promotional transfers). 264 (1947) .. a "preponderance of the evidence" will be sufficient to satisfy the burden. Abernethy. 1G1 But where the employee has satisfactorily performed his work for a number of years. 56 (1946). Owl Drug Co. Pollard. In the latter case. Ford Motor Co. 52. It is a tribute to American tenacity that the parties persist in attempting to accomplish the impossible and are perpetually experimenting with new devices to accomodate the conflicting interests of management and labor. 159 On the other hand.. Alan Wood Steel Co. 869 (1955). when a senior employee is transferred to a lower rated job. Brandschain.1959l GRIEVANCE ARBITRATION discussed above.. 4 Lab. 16 0 In the normal case. Warren City Mfg. or inability. not only from other agreements in the same industry. 7 Lab. 24 Lab. 550 (1950). seniority provisions in a given agreement tend to differ.. compare. These variations are the inevitible consequence of the complexity of the seniority problem. Arb. 17 Lab.. 142 (1955). 25 Lab. this is a serious deviation from normal practice. Professor Klamon held that the union had the burden of establishing alleged discriminatory intent.. Arb. 498. 508-509 (1948). Here again.. 14 Lab. 10 Lab. 23 Lab. Corn Products Refining Co. Arb. Arb. but from previous agreements between the same parties. 784 (1952) ..' 2 or proof "beyond a reasonable 63 doubt"' is required by some arbitrators when such employee is demoted for alleged incompetence. Arb. the better view would seem to be that the burden of proof should rest on the union. 159 . Allied Chemical & Dye Corp.. 24 Lab. Arb. As a result. General Refractories Co. Lawrence Products Co. Kelliher. 312 (1950). 10O In Flexonics Corp. and some arbitrators have imposed the burden of justifying the action upon the employer. as alleged by the employer. Arb. and Hale. Carter. 130. Ix LAYOFF CASES There are probably as many different layoff and recall procedures as there are labor agreements in this country. 484 (1955).. Arb. Co. 609 (1954). North American Aviation. but that the employer was obliged to prove that the favored junior employee actually was relatively more able. however. 163 Komaroff. See also. Southwestern Bell Telephone Co. 7 Lab.. Though there is great dissimilarity of treatment of seniority in Babcock. hold that management's decision in demoting an employee (usually because of a belief of lack of ability) is one which may be set aside only upon presentation of evidence showing arbitrariness or caprice. 162 Hale. 310. Arb. Corn Products Refining Co. 14 Lab. Arb. It is frequently observed that no one can draft a layoff system which will please both parties. "exception6 ally weighty and substantial proof". 202 (1947).
167 Feinberg. Arb. 191. it would seem that the burden of proof should clearly rest upon the union as the charging party (at least where the agreement does not indicate a contrary result). and the issue of ability is raised... 938. 43 individual instances. Arb. the union must prove arbitrariness or caprice or fail in its case. Once the dispute is narrowed down to the grievance of an individual senior referring to an individual junior's job. provided that the employees remaining in the seniority unit have the ability to do the work there is to do. particularly with respect to the makeup of seniority units and problems of personnel movement between them. 941 (1950). and most burden of proof problems revolve around the same question. "'Reasonable doubt' is not used here in its strict legal sense. National Gypsum Co. Where there is a dispute. 6 Lab. 14 Lab. Some labor agreements provide for the removal of the least senior employee regardless of whether the retained employees are able to do his work. Arb. Haw- . the union should be obliged to prove 1) that the grievant actually is senior. 266 Abernethy. Some labor agreements require the removal of the least senior employee if the employer can get his work done by a reshuffling of the remaining work force. Disputes under agreements of these kinds raise burden of proof problems all their own. 2) that the grievant is within the proper seniority unit and has rights therein.' 68 There can be no doubt that the Company alone must make the decision as to its employees' productive ability and skill. 56) states. of course. Management's trained supervisory force is required to observe and 164 The general statement and the corollaries are. 168S Ingle. a footnote (at p. Arb. rather laconically. the union must show which juniors were retained allegedly in violation of the agreement. supra. 517 (1948). and which seniors should have been retained instead. 197 (1950). Corollaries of this may be stated thus: 1) the least senior employee will not be the one first removed unless his work can be done by an employee senior to him. Compare note 136.MARQUETTE LAW REVIEW [Vol. there appears to be a fair degree of uniform acceptance of this basic proposition: the employee with the least seniority (however computed) in the seniority unit (however determined) will be the first removed however. Combustion Engineering Co. Merrill-Stevens Dry Dock & Repair Co. 166 This requirement is not satisfied merely by presenting a list of the names of all those laid off. since it will not be assumed that every employee in a seniority unit possesses the ability 67 to perform the work of every junior employee in that unit. 165 With respect to most other matters. As a result.. 515. not applicable in all cases. Marshall." (whether transferred or laid off). Those arbitrators who hold that the union has the burden of proof frequently do so on the familiar ground that the evaluation of ability is a management function.'" Preliminarily.. there is much disagreement as to who has the burden of proof. Bethlehem Steel Co. 841 (1947) . 9 Lab. 14 Lab. 2) a senior employee whose work has run out will be the first removed unless he can perform the work being done by a junior. and other similar matters.164 Most of the reported cases deal with the problem of ability. 838.
. Management must be expected to explain the reasons for its action when challenged. 20 Lab. Norwalk Co. Gilden. 6 Lab. Arb. 11 Lab. Arb. 515 (1950) . 38-39 (1954). MerrillStevens Dry Dock & Repair Co. Carmody. 316 (1950). Co. say these arbitrators. Inc. Roberts. 582 (1946) : "The Umpire believes that even if the determination of ability and fitness are primarily for management. Arb. Mergenthaler Linotype Co. 7 Lab. 17 Lab. 1 72 In the leading case on the subject. 0 17 Lewis. 6 Lab... Sembower. McNeill & Libby. For this reason. 149 (1949) . Libby. In reaching this conclusion. Inc. 786. 10 Lab.. 324 (1948) . however. Fruehauf Trailer Co. 516.. Inc. Arb. 512. It is to the Company's interest to identify and reward skill and ability. it is incumbent upon management to do more than allege that an employee who was laid off was deficient in these qualities. 13 Lab. Baab. 12 Lab. 527 (1947). Arb. Arb. Arb. Marshall. On the other hand. 512. Arb.. and that the union must prove its allega70 tions. Greene. 791 (1955).. Aero Supply Mfg. Arb.. the burden to come forward with evidence shifts to the Employer to prove that the employee laid off or transferred does not have the skill and ability equal to the one retained. American Dyewood Co. Arb. "The employer should have the burden of proving his case with reference to skill and ability.. Arb. Bethlehem Steel Co. 803 (1947). Whiting. the latter being referred to management for determination. since the employer is the one initially to alter the status quo and make his choice as to which of the employees was to remain on the job.. Rader. 38. Arb.. 169 Others simply hold that proof of the senior's ability is an essential part of the union's case. 518 (1951). most seniority clauses in collective bargaining contracts qualify straight seniority with the 'skill and ability' phrase. Lebanon Steel Foundry. 14 Lab. Abernethy. 23 Lab. 99 (1946)... 838. 526... Washington Metal Trades. Arb. 535 (1946). Merrill-Stevens Dry Dock & Repair Co. Poloron Products of Pa. 183 (1953). 788 (1947). United States Time Corp. Arb. 468 (1953) . 5 Lab. frequently cited by other arbitrators. Brandschain. 6 Lab. 983 (1949). 515 (1950) . 171 Rosenfarb. American Air Filter Co. Appleby. 423 (1948). 4 Lab. 578. 789. Cheney. or that he did not possess initiative at least equal to that of DePodesta. Thor Corp. Link Belt Co. Arb.. Arb. Arb. Stewart-Warner Corp. 23 Lab. Arb. 169 Baab. There . 841 (1947).. the Arbitrator is not unmindful of the contrary testimony of the Shop Superintendant nor of the terms of ley.1959] GRIEVANCE ARBITRATION to reward skill and so to assign workers as to promote the highest rate of production conceiveable in keeping with harmonious industrial relations and high quality of product. Wardlaw. a number of arbitrators are of the opinion that "as soon as the Union proves that the grieving employee has greater seniority than the one retained." 172 Brandschain. Crown Cotton Mills. Arb. Borg-Warner Corp. see also. 20 Lab.. 14 Lab. that Chronister lacks initiative in his work. Arb. while the former is automatically determined by length of service and zealously defended by organized labor. Harry Platt makes the following full exposition of this point of view: A careful review of the evidence fails to convince me. 23 Lab. Thor Corp.. The quotation continues."' 171 To hold that the determination of ability is a function of management is not the equivalent of holding that the burden of proof rests on the union. 3 Lab. 379 (1954). Justin. 14 Lab. 94.
it becomes the Arbitrator's function and duty to test the validity of the employer's determination in the light of the authority vested in the employer by the agreement or. Arb. Copco Steel & Engineering Co. Arb. MoleRichardson Co. 618 (1955). (1948). it must be established by clear and convincing evidence that the senior employee's ability to do the work is not relatively equal to the junior's and therefore the employer's action in retaining the junior employee was not in excess of his powers under the 3 1 7 terms of the contract or arbitrary or capricious.. 25 Lab.. Arb. in the absence of agreement. 6 (1949). where the contract expressly grants a preference to a higher seniority employee to remain at work in the event of a reduction of forces.. Shister. Arb. 843-847 (1950). Combustion Engineering Co. In the one case there has been apparently satisfactory performance of the disputed 1 7 work. Airquipment Co. 10 Lab. that the Company's determination is subject to review in the grievance procedure.. in other cases. Arb. Inc.. Arb. Rome Grader Co. In some. 333. 12 Lab. 15 Lab. Thus. 10 Lab. of course. In such circumstances.. Arb. Lebanon Steel Foundry. 427 (1949). 162 (1948) . In such case it seems perfectly reasonable to require the employer to justify his choice of the junior. 403 (1950). Dodd. Gilden. Bethlehem Steel Co. The clear intent of the further language of Section 17D is. supra note 174. while in the other there is mere speculation. Arb. 176 For example. 177This distinction is suggested by Brandschain. 43 Section 17D. Arb. many other arbitrators impose the burden of proof in such cases on the employer. in the light of established plant practice. 618. Darin & Armstrong. Bell Aircraft Corp. Inc.. Lowell Bleachery. Platt. 13 Lab. Aaron.. McCoy. Platt. On the other hand. the union should be required to show the senior's ability. see also.'175 the laid off senior and the retained junior were performing the same kind of work prior to the layoff. 1 (1952). Chrysler Corp. that an arbitrator may substitute his own judgment for that of the employer's where neither the contract terms nor the established plant practice proscribe the employer's action or when either furnishes a standard for exercising his judgment which has been property applied . Shister.. which provides that the Company shall be the judge of the 'employee's ability to do the work in question'. 174 It should be noted that these cases do not all involve exactly the same fact situations. 336 (1946) . however. 94.. and Aaron. 12 Lab. Darin & Armstrong. Arb. Bell Aircraft Corp.17 6 In such a situation. 175 For example. 284 . 22 Lab. Arb. 4 Lab. of which arbitration is the final step. 19 Lab. Wolff.. Arb. the senior seeks to displace a junior working on a different job. 170 (1953) . ought to be evidence to support such a charge. when a case is taken to arbitration. That is not to say. For basically the same reasons. McKelvey. 416 (1953).. in a case such as this. Aaron. 623 (1955). 20 Lab.. Campbell Soup Co. if his ability to do the work in question is relatively equal to that of a junior employee. 25 Lab.. 5 Lab. 99 (1946). 173Platt. 174"%Vaite. supra note 173. Arb. particularly where the senior has not performed the disputed work before... [Vol." The extent and degree to which the determination of ability actually is a management function are substantive matters. 167. beyond the scope of this paper.MARQUETTE LAW REVIE'[. Airquipment Co.
such review is generally in terms of whether management has been arbitrary or capricious in the exercise of this discretion. 23 S. S.R. 25-26 (1959). 957 (1948).E. 4 (1946). arbitrators have uniformly held that the burden rests upon the union to prove the existence of arbitrariness or 78 caprice 1 or that management has acted unreasonably or upon erroneous factual assumptions. Schedler. 2d 697 (6th Cir. Love. 11 Lab. 28 Lab. Ralph C. 1 (1950). 95. In civil litigation. 480 (1953). Courshon. 181 Cheney. 180 For example. Where the applicable labor agreement expressly or impliedly permits arbitral review of management's determination. Wolff. Platt. 824. cert. annotation.. 490 (1946). 3 Lab. 53 N. Tubular Products Co. Arb. N. 11. Atlas Imperial Diesel Engine Co. 266 (1933).B. Arb. International Harvester Co. 9 Lab.S.L. it is Cahn. Kelliher. Mitigation of Damages While the contrary result may be dictated by unique contract language in individual instances. (N. Arb.W.S. 14 Lab. Arb. 477. Bethlehem Steel Co. 641.. 54 N. 324 Mo. 15 Lab. Arb..E. 355 U. the general rule is that a wrongfully discharged employee is obligated neither to plead nor prove that he has been unable to obtain outside employment. required to 83 accept a lower paying position offered by the employer. Merit Increases There appears to be agreement among arbitrators that.. Arb. Singer Mfg. the decision of whether to grant or withhold merit increases is one for management. Gardner-Richardson Co. No. where the agreement is silent. Arb. A. Bernstein... 11 Lab. Co. Seward. 139 (1950).R. 1 In proceedings before the National Labor Relations Board. 826 (1956).. 437 (1899). 18. Feinberg. Arb. 616 (1953). Arb. 162 (1948). 614. in the opinion of some arbitrators. Arb. 41 A.J. International Harvester Co. Hollwedel v. 263 N. 709.. 26 Lab. 10 Lab. 178 .A. 1. 2d 958.E.. 242 F. 84 If the employer desires to reduce damages. Seward. the wrongfully separated employee is generally required to mitigate his 2 damages by attempting to obtain suitable employment elsewhere.L. He is not. 21 Lab.. however. v..) 108. Mode O' Day Corp. 10 Lab.. Coxhead Corp. 184 Hamilton v. 179 Gorder.8 0 arbitrators generally hold that outside income earned during a period of wrongful layoff or discharge is to be deducted from the total back-pay award. Bethlehem Steel Co. Arbitration Back-Pay Awards. State Board. 821 (1957). Arb.. Airquipment Co. 255 (1957). 182 Conn. 79 B..""' Furthermore.R. Arb. Arb. Arb. 1 Lab. International Harvester Co. 188 N.Y. Here again. Gorske. 183 Aaron. 67 (1948). 21 Lab. 2d 1013 (1930). Inc.. Chase Brass & Copper Co. compare Annotation. 10 Lab. L. 6 L. Supermatic Products Co. 314 (1948). he is required to prove that the employee had other employment or could have obtained other employment by diligent effort. 181. Compare. School Dist. Duffy-Mott Co. 10 Lab. 185 Tate v. 484 (1947). appraisal of the validity of these substantive approaches to contract interpretation is beyond the scope of this paper. 1957). denied.1959] GRIEVANCE ARBITRATION X MISCELLANEOUS MATTERS A. 712 (1948).. In such cases. 152 Ind. Southern Silk Mills.
R. Arb. 6 While previously. No. This paper however. after all. if the gap between the parties can be said to be so narrow. 957. Harvest Queen Mill & Elevator Co. informal though they may appear. it is difficult and probably basically erroneous to attempt to make generalized statements about labor arbitration procedure. the judgment of the arbitrator to whom the parties have mutually entrusted the decision of the dispute 186 187 188 189 Ozark Hardwood Co. 90 N. 11 Lab. There must. however. This kind of situation inherently requires some standards of procedure outside the momentary desires and relative strengths of the parties. The field of labor arbitration itself is too amorphous and unsettled to permit formulation of "rules" or techniques to be applicable at all times and under all circumstances. has proceeded under the assumption that in most cases there is.. 320 (1950). The "standard" which results from this requirement is generally a personal one.L. 1 9 s XI CONCLUSION As pointed out at the beginning of this paper. Arb. International Shoe Co. Platt. . a certain degree of "formalism" in labor arbitration today. 43 similarly held that the burden of proving the employee's failure to 18 mitigate damages is on the employer. and perhaps properly so. there are perhaps not too great a number of companies and unions blessed with the mutual trust and respect essential to the adequate working of extremely informal procedures.MARQUETTE LAW REVIEW [Vol. Gardner-Richardson Co. very few cases are fit subjects for the telephone arbitration or the arbitrator-consultant approach.L. compare Wardlaw. 500 (1946). One of the great practical advantages of arbitration today is its flexibility and its adaptability to the individual needs of widely diverse parties. registration with a state or federal employment service was considered conclusive evidence of a reasonable search for work (the employer being permitted to advance other evidence of wilful idleness only if he could show failure to register) . be some kind of procedure for arbitration hearings.17 the present rule is that regardless of registration. Indeed. 129 (1957)..B.188 The burden of proof. In arbitration. Further. It would probably be unwise to restrict the procedure in any manner which might impair its usefulness.R. the employer may show failure of the employee to use diligence in finding other work. 3 Lab.B.. it would probably be similarly unwise to compel unwilling parties to submit disputes under rules which they find mutually unsatisfactory. 119 N. It is probably accurate to say that most labor arbitrations are conducted at "arm's-length". the rules appear to be similar. 961-962 (1948). Case cited supra note 186. remains with the employer.
experience. In many instances (perhaps most) these customs and techniques have borrowed the forms of analogous techniques and procedures in legal tribunals: courts and administrative bodies. This is. the validity of the principle itself is rarely questioned. this should not be listed as a defect in the arbitration process as a means of settling industrial disputes. not the mere restatement of some rule. However. While some may be reluctant to so denominate it. resting upon the philosophy. necessarily. it can be considered an advantage. trial and error of the arbitrators and the parties. as the cases cited throughout this paper indicate. when it is more informal). a variable standard. in the formulation of which neither party participated. background. at times. prejudices and convictions of the mutually selected arbitrator. except in instances in which most would admit that it simply has no application. In other instances.1959] GRIEVANCE ARBITRATION and the hearing of the case. The burden of proof/burden of proceeding concept is a sound one for use in any kind of truly adversary proceeding in which there is a dispute of fact. It is submitted that it is not a useless technicality. More specifically. On the contrary. that where an arbitration hearing is conducted under quasi-judicial circumstances (even. If the judgment of the arbitrator is exercised unjustly or in an unenlightened manner. they have been developed by the arbitration profession itself to suit the unique process of labor arbitration. the remedy of the parties is clear (at least for future cases): acquisition of a new arbitrator. vague and indefinite as those standards necessarily are. and that the resolution of it will be relevant to the case. . however. Evidence of such standards can be found principally in the customs and techniques developed over the past 20-odd years (and previously) through the experience. If the manner of exercising this judgment is unpredictable occasionally. since it assures the parties that all the circumstances peculiar to their problem will be considered. it seems fair to say. nor is it an indication of "excessive legalism". It is submitted that most arbitrators feel that they must conform to some objective standards in procedural matters. all of this is not said in support of the proposition that the arbitrator should consider himself free to react to procedural problems in any direction his whims might point him. it is really doubtful that any of the numerous qualified arbitrators in this country considers his status to be such. of course. most arbitrators recognize the usefulness of the burden of proof/burden of proceeding concept as it has developed in Anglo-American jurisprudence. Indeed.
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