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A
of
Labor-Management Grievances
r b it r a t io n
Bethlehem Steel Company
and
United Steelworkers of America
1 9 4 2
- 5 2
Bulletin No. 1159
UNITED STATES D E P A R T M E N T OF L A B O R
J a m e s P. Mitchell, Secretary
B U R E A U O F L A B O R STATISTICS
E w a n Clague, Commissioner
A R B IT R A T IO N
O F
L A B O R - M A N A G E M E N T
G R IE V A N C E S
Bethlehem Steel Company
and
United Steelworkers of America
1942-52
Bulletin N o . 1159
UNITED
STATES
D E P A R T M E N T
James
P. M i t c h e l l ,
O F
L A B O R
Secretary
BUREAU OF LABOR STATISTICS
Swan Clagvc, Coaunitsionor
For sale by the Superintendent of Documents, U. S. Government Printing Office, Washington 25, D. C.
-
Price 35 cents
Letter
of
Transmittal
UNITED STATES DEPARTMENT OF LABOR,
Bureau of Labor Statistics,
Washington, D. C., April 29, 1954.
The Secretary of Labor:
I
have the honor to transmit herewith a study of 10 years of grievance
arbitration Linder the collective bargaining agreements of the Bethlehem Steel
Company and the United Steelworkers of America (CIO). This study of the ex
perience of a large company and union in the peaceful adjustment of grievances,
as revealed in the examination of approximately 1, 000 decisions of mutually
appointed arbitrators, illustrates standards of employer-employee relationships
which are increasingly becoming a part of American industrial life.
This study was prepared in the Bureau^ Division of Wages and Industrial
Relations by Kirk R. Petshek, Solomon Shapiro, and Joseph W. Bloch, with the
assistance of Dorothy R. Kittner.
Thomas H. Paine and Willmon Fridie par
ticipated in the analysis of the decisions.
The Bureau is especially grateful to Mr. James C. Phelps, Assistant
to the Vice President, Bethlehem Steel Company, for his generous cooperation
and suggestions.
Ewan Clague, Commissioner.
Hon. James P. Mitchell,
Secretary of Labor.
Preface
Unions and management have felt increasingly that labor-management relations can
be improved if, after a collective bargaining agreement is signed, there is an accepted
way of resolving disputes which may arise. Disagreements emerging from the existing
relationship clearly can be most efficiently and equitably handled if well-defined pro
cedures are established to facilitate settlement by the parties or, where agreement cannot
be reached, by a mutually approved outsider, A large proportion of collective bargaining
agreements now provide for arbitration as the final step in the grievance procedure.
The type of arbitration discussed in this study is concerned with disputes over
grievances arising under existing agreements, rather than with the terms of new agree
ments. The arbitrator^ function in cases of this type is to interpret and apply the
contract, or to evaluate the evidence if the dispute hinges on questions of fact. The
arbitrator may be named in the agreement, which makes him the permanent "umpire"
for the period specified. The parties, on the other hand, may agree on a procedure
through which the arbitrator will be named when the case arises (so-called "ad hoc"
arbitration); or they may agree in advance on a small panel of names, from which one
will be chosen as needed. Sometimes a tripartite board rather than a single arbitrator
is established. Whatever the procedure, the important point is that management and
union have agreed to submit to a third party disputes arising out of the daily application
of the terms of the document setting forth the employment relationship.
No collective bargaining agreement, no matter how carefully drawn up, can
provide a clear-cut answer to all of the problems that might arise in its administration.
Although only the parties themselves can attain a full understanding of the problems of
the particular plant and the employment relationship, an arbitrator must to some extent
acquire such an understanding in order to fulfill his function.
The wording of provisions differs among collective bargaining agreements and
may change, for the same plant, as each new agreement is negotiated. Hence the inter
pretation of apparently similar clauses varies. The facts of each case, moreover, may
determine the application of these clauses and guide the arbitrator^ judgment. While
arbitrators generally are not bound by precedent, some similarity frequently can be dis
tinguished among different decisions, and over time some general principles may be
observed.
The purpose of this study is to analyze the arbitration decisions in one company.
While this study is confined to the experience of an individual company and union, it can
be useful beyond the particular circumstances from which it was derived. The decisions
and the reasoning behind them must be viewed in the context not only of the agreement
and of the company and union practice but also of other decisions rendered previously.
The arbitrator is limited by the terms of the written agreement, which are often not
specific. Agreement clauses are determined through the give-and-take of collective bar
gaining, hence neither party may be entirely satisfied with the provisions as negotiated.
Moreover, although accepting the award neither party may subscribe fully to the arbi
trator^ interpretation and his opinions regarding the validity or shortcomings of any
action. This dissatisfaction, in the long run, may lead either to the settlement of a
greater proportion of grievances at the intermediary levels, or to changes in agreement
terms, or even to a change in arbitrators.
(v)
Preface - Continued
The Bethlehem Steel Company was selected for study for several reasons. In
the first place, it operates in a basic mass-production industry and employs a large
number of workers. Secondly, labor-management relations in this company were relatively
harmonious for a number of years. A detailed and carefully planned and nurtured griev
ance machinery took care of most of the disputes that arose; those that required arbi
tration were only a small percentage of the grievances formally advanced by employees.
Finally, the procedure for the selection of arbitrators was quite varied in this situation:
For the first 5 years of contractual relationships, the arbitrators were selected !,ad hoc11
from a panel of names, none of whom was chosen too frequently; between 1947 and 1952,
arbitration in rotation among a panel of three arbitrators (consisting of a lawyer, an
economist, and a professor of labor relations) was used.1
This study analyzes all arbitration awards of the Bethlehem Steel Company under
its master agreements with the United Steelworkers of America (CIO), from the inception
of the collective bargaining relationship in mid-1942 through June 1952. The relatively
small number of disputes (about 1,000) decided by arbitrators, out of about 20,000 formal
grievances arising during this period, would appear to indicate the existence of well
working grievance machinery.
1 W ith th e ad v ent o f th e 1952 c o n tr a c t th e p a r t i e s a g r e e d on a sin g le a r b i t r a t o r .
h o w e v e r, n e c e s s ita te d th e ap p o in tm en t of th r e e a s s i s t a n t a r b i t r a t o r s .
(vi)
A n in c r e a s e
in c a s e lo a d d u rin g 1 9 5 3 ,
Contents
Page
PART I.—TYPES OF GRIEVANCES
1
Grievance procedure and arbitration___ ________
Classification of grievances reaching arbitration
Scope of the study
Grievances by subject______
Grievances by type of action
Grievances by plants
Grievances by contract
Grievance issues ________
Wages or job classification
Wage rates or job classification
Basis of wage payment______ _
Premium pay_______ __ _______
Nonproductive pay
Other wage grievances
Seniority______ _________
Discipline
Job assignment_______
Work force assignment
Work schedule_______
Bargaining unit _______
Vacation_____________
PART H. — DISCIPLINE AND DISCHARGE________________ ______________
1
3
3
3
3
4
4
5
5
5
6
6
7
?
7
9
9
9
10
10
10
11
Employee actions which justified penalties _____________ -________ ______
11
Improper work performance_______
11
Improper job attitudes__ ______________________________________________ 11
Improper personal conduct ________
11
Union activity in violation of agreement_________ ____________________
12
Rights and responsibilities of the parties_________ ___ __________________
12
Management prerogatives and responsibilities--------------------------- ------12
Standards of penalty imposition__________________________________
12
Standards of company administration_____________________________
13
Assignment to appropriate jo b s __________________________________
14
Employees1 rights and responsibilities______________________________
14
Union responsibilities__,__________________________________
16
Selected standards of job performance____________________________ ____
17
Negligence_______________________________________________
18
Inability to perform the job__________________________________________
19
Insubordination___________________________________________________
19
Other problems in discipline cases __________________________________ __
20
Purpose of discipline ______________________________________________
20
Considerations for fixing penalty _____
21
Past record of the worker_________ _______ ____________________ __
21
Seriousness of the charge__ _________ ______ ______________________ _
21
Amount of damage ____________________________________
21
Customary practices________
21
Reasonableness of the penalty__________
21
Other considerations ____________
21
(v ii)
C o n t e n t s - C o n t in u e d
Page
PART
IUo — S E N I O R I T Y __________________________________________________________
23
G e n e r a l interpretation of the seniority clause ___________________ ____________
Interpretation of "relative ability"_________ ______________________________
M e a s u r e m e n t of ability__________________________
E m p l o y e e rights in seniority c a s e s ________________________ ___________________
Seniority rights of returning veterans ____________________________________
Seniority rights of w a r t i m e w o m e n e m p l o y e e s _____________ _____ _________
O t h e r seniority rights _____________________________________________________
O t h e r seniority p r o b l e m s _____________
Seniority units _________________________________ __________ _______ _______ __ __
Posting of vacan c i e s _________________________________________________
Variations of seniority rule for t e m p o r a r y a n d n e w j o b s _____ ___________
23
24
25
26
26
27
28
28
28
29
29
PART
IV.— W A G E
RATES
AND
JOB
CLASSIFICATIONS
Wage grievances, 1942-47
___________________________
The 1947 job classification plan _________ _______________
Wage and classification grievances, 1 9 4 7 -June 1952
Job classification grievances ___________________ ____
Employee classification grievances ________________
B asis for denial of classification grievances _____
Incentive rate g rie v a n c e s____________________________
L oss of earnings ____________________________ _____
"Unreasonable and unfair" r a t e s __ _____________
Change from time to incentive rates _____ _____
Question of time or incentive r a te ____________ _
31
31
32
33
35
36
37
38
38
40
41
42
TABLES
1.
2.
Plants c o v e r e d b y a g r e e m e n t s b e t w e e n the B e t h l e h e m Steel
C o m p a n y a n d the United S t e e l w o r k e r s of A m e r i c a _____________________ __
1
Distribution of grievances o n w h i c h arbitrators r e n d e r e d
decisions, b y subject a n d final determination,
B e t h l e h e m Steel C o m p a n y , 1 9 4 2 - 5 2 _____________ ____ _______________________
4
3o
Distribution of grievances o n w h i c h arbitrators r e n d e r e d decisions,
b y plant a n d subject, B e t h l e h e m Steel C o m p a n y , 1 9 4 2 - 5 2 ___________ 5
4.
W a g e s or job classification: Distribution of grievances o n
w h i c h arbitrators r e n d e r e d decisions, b y issue a n d final
determination, B e t h l e h e m Steel C o m p a n y , 1 9 4 2 - 5 2 _______________ ______
6
Seniority: Distribution of g rievances on w h i c h arbitrators
r e n d e r e d decisions, b y issue a n d final determination,
B e t h l e h e m Steel C o m p a n y , 1 9 4 2 - 5 2 ____ _____________________ _____ _________
8
5„
(viii)
Arbitration of Labor-Management Grievances: Bethlehem Steel C o m p a n y
and the United Steelworkers of America,
PART
I —
TYPES
B e t h l e h e m Steel C o r p o r a t i o n is the
s e c o n d largest p r o d u c e r of iron a n d steel,
as well a s the largest fabricator a n d e r e c
tor of structural steel a n d a leading A m e r i
c a n shipbuilder.
T h e corporation functions
thro u g h operating subsidiaries, chief of w h i c h
are the B e t h l e h e m Steel C o m p a n y a n d the
B e t h l e h e m Pacific C o a s t Steel Corporation.
OF
1942-52
GRIEVANCES
Corporation, Buffalo T a n k Corporation, B e t h
l e h e m Supply C o m p a n y (California), a n d the
Dundalk C o m p a n y .
TABLE
1 . — P l a n t s c o v e r e d b y a g r e e m e n t s b e t w e e n th e
B e t h l e h e m S t e e l C o m p a n y a n d th e
U n it e d S t e e l w o r k e r s o f A m e r i c a
C o n tra ct p e r io d
In 1953 the a v e r a g e e m p l o y m e n t of
the subsidiaries of B e t h l e h e m Steel C o r p o
ration w a s a p p r o x i m a t e l y 1 5 7 , 0 0 0 w o r k e r s . 1
M o r e than half of these w o r k e r s w e r e c o v
e r e d b y collective bargaining a g r e e m e n t s with
the United S t e e l w o r k e r s of A m e r i c a (CIO).
T h e steel plants a n d fabricating w o r k s of the
c o m p a n y ar e located in Illinois, M a r y l a n d ,
N e w Y o r k , a n d Pennsylvania.
T h e largest
plant, with a n annual capacity of 5 , 7 5 0 , 0 0 0
net tons, is located at S p a r r o w s Point, M d .
After a considerable p e r i o d of d e a l
ing with e m p l o y e e s t h r o u g h a n E m p l o y e e
R e p r e s e n t a t i o n Plan, the B e t h l e h e m Steel
C o m p a n y signed its first contract with the
Un i t e d S t e e l w o r k e r s of A m e r i c a ( C I O ) in
A u g u s t 1942. Since t hen contract negotiations
h a v e b e e n held o n s e v e n different occasions.
F o u r s u ccessive m a s t e r a g r e e m e n t s
have been concluded b e t w e e n B e t h l e h e m and
the Steelworkers, effective 1942, 1915 with
later a m e n d m e n t s , 1947 with later a m e n d
m e n t s (including 1949), a n d 1952. T h e o p e r
ation of the arbitration m a c h i n e r y u n d e r the
first three a g r e e m e n t s (up to JiiLy 1, 1952)
is c o v e r e d b y this study.
T h e 1942 a n d 1945 a g r e e m e n t s c o v
e r e d 16 a n d 17 plants a n d w o r k s , r e s p e c
tively (table 1 ).
In early 1946 the 5 W e s t
C o a s t plants w e r e t a k e n o v e r b y the B e t h l e
h e m Pacific C o a s t Steel C o r p o r a t i o n leaving
12 B e t h l e h e m Steel C o m p a n y plants u n d e r
the 1947 a g r e e m e n t . E l e v e n plants (the C h i
c a g o W i r e Plant h a d b e e n c l o s e d ) plus t w o
w a r e h o u s e s r e p r e s e n t the B e t h l e h e m Steel
C o m p a n y ’s operations u n d e r the A u g u s t 1952
a g r e e m e n t . T h i s a g r e e m e n t also c o v e r s four
other
subsidiaries of the B e t h l e h e m Steel
C o r p o r a t i o n — B e t h l e h e m Pacific C o a s t Steel
1 Bethlehem Steel Corporation, Annual Re
port, 1953.
http://fraser.stlouisfed.org/
9 8 2 3 0 - 54 - 2
Federal Reserve2 9Bank
of St. Louis
(i)
P la n ts and lo c a t io n
1 9 4 2 -4 5
A l a m e d a W o r k s , C a l i f . ______ _
B e t h l e h e m , P a . __ ________________
C h i c a g o W ir e P l a n t , 1 1 1 .________
C h i c a g o W o r k s , 111.
_____ ____
C o a t e s v i l l e , P a . _______________ _
J o h n s t o w n , P a . ____________________
L a c k a w a n n a , N . Y . ____ ________
L e b a n o n , P a . ____________________
L e e t s d a l e W o r k s , P a . __________
L o s A n g e le s , V e r n o n ,
C a l i f . ______________ _________ _____
L o s A n g e l e s W o r k s , C a l i f . ------P o t t s t o w n W o r k s , P a . __________
R a n k in W o r k s , P a . _______________
S e a t t l e , W a s h . ____________________
S o u th S a n F r a n c i s c o , C a l i f . ___
S p a r r o w s P o i n t , M d . _________ _
S t e e l t o n , P a . _______ __ ________
W i l l i a m s p o r t , P a . ________________
1 9 4 5 -4 7
1 9 4 7 -5 2
X
X
X
X
(')
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
«
l 1)
X
X
X
X
1 T h e s e p la n ts b e c a m e p a r t o f
C o a s t S t e e l C o r p . in 1 9 4 6 .
th e
B e th le h e m
X
X
X
(*)
l 1)
X
X
X
P a c ific
T h e bargaining unit in t e r m s of type
of w o r k e r s c o v e r e d generally r e m a i n e d uni
f o r m for all four contracts. Specifically in
cluded w e r e the production a n d m a i n t e n a n c e
e m p l o y e e s ; specifically e x c l u d e d w e r e e x e c
utive,
salaried,
office,
supervisory,
and
g u a r d categories.
Grievance Procedure and
Arbitration
T h e g r i evance m a c h i n e r y p r o v i d e d
b y the four a g r e e m e n t s c o v e r e d disputes r e
garding the m e a n i n g or application of the
a g r e e m e n t or disputed m a t t e r s relating to
wages,
h o u r s of w o r k ,
a n d other w o r k i n g
conditions.
T h e r e w a s to b e n o sus p e n s i o n
of w o r k b e c a u s e of s u c h d i s putes.
If a n
e m p l o y e e believed h e h a d a justifiable r e
quest or c o m p l a i n t he could discuss it orally
with his f o r e m a n , with or without the p r e s
e n c e of a union steward.
Failing a satis
factory settlement of the matter, h e could
then enter u p o n the f o r m a l steps of the g riev
a n c e p r o c e d u r e outlined in the a g r e e m e n t s .
T h e four f o r m a l steps prior to arbitration
2
w e r e d e s c r i b e d a s a general standard w h i c h
could be m o d i f i e d at a n y plant b y a g r e e m e n t
of both parties.
Step 1: T h e f o r m a l p r o c e d u r e r e
q u ired the written presentation of the g r i e v
a n c e b y the e m p l o y e e or the union s t e w a r d
to the f o r e m a n .
If not settled, appeal to the
d e p a r t m e n t superintendent (Step 2) w a s to be
m a d e within a specified n u m b e r of days. If
not a p p e a l e d within this t i m e limit, the c a s e
w a s c o n s i d e r e d closed.
Step 2:
T h e p r o c e d u r e p r o v i d e d for
discussion b e t w e e n
the d e p a r t m e n t
union
s t e w a r d a n d the d e p a r t m e n t superintendent
a s the next step.
If the g r ievance w a s not
settled at this level, a p p e a l to the plant m a n
a g e m e n t ’s representative— the
person han
dling industrial relations p r o b l e m s at the plant
— w a s to be m a d e within a specified n u m b e r
of days. Again, unless the appeal w a s m a d e
within the specified t i m e limit, the g r ievance
w a s c o n s i d e r e d settled.
Step 3 : If n o a g r e e m e n t w a s r e a c h e d
at the p r e c e d i n g step, discussion w a s held
b e t w e e n the m a n a g e m e n t ’s representative, the
plant grievance c o m m i t t e e , a n d a plant union
representative (designated b y the union, g e n
erally not a plant e m p l o y e e ) .
If a n o p p o r
tunity for s u c h discussion w a s not p r o v i d e d
b y the m a n a g e m e n t ’s representative within
a specified n u m b e r of days, the g r ievance
could be a p p e a l e d to the fourth step, unless
the p e r i o d w a s m u t u a l l y extended. A gri e v
a n c e not p r o c e s s e d p r o p e r l y t h r o u g h the first
t w o steps w a s r e f erred b a c k to the p r o p e r
s u p e r v i s o r y officials unless the g r ievance
related to a general m a t t e r w h i c h could not
b e settled b y s u c h officials. M i n u t e s of the
p r o c e e d i n g s w e r e p r e p a r e d b y the m a n a g e
m e n t ’s representative a n d signed b y the latter
a n d the griev a n c e c o m m i t t e e c h a i r m a n .
If
the griev a n c e w a s not settled at this step,
it w a s a p p e a l e d within a specified n u m b e r of
d a y s to the fourth step.
A grievance not
a p p e a l e d within a specified n u m b e r of d a y s
to the next step w a s c o n s i d e r e d settled.
Step 4 : G r i e v a n c e s not settled in the
first three steps w e r e d i s c u s s e d b e t w e e n t w o
un i o n representatives a n d t w o c o m p a n y r e p
resentatives. Written notice of the intention
of either party to take up a g r ievance u n d e r
this step w a s to b e given to the other p arty
within a specified n u m b e r of d a y s after its
disposition in Step 3.
M e e t i n g s as n e c e s s a r y u n d e r Step 4
a n d a n y other p r o c e d u r e s r e q u i r e d to settle
a gri e v a n c e w e r e a g r e e d u p o n b y r e p r e s e n t a
tives of the c o m p a n y a n d the union. M i n u t e s
of the discussion m e e t i n g s u n d e r this step
w e r e to b e p r e p a r e d in p r e s c r i b e d f o r m b y
the c o m p a n y representatives a n d signed b y
t h e m a n d b y the union representatives within
a specified n u m b e r of d a y s after s u c h m e e t
ing.
If a grievance, after being p r e s e n t e d
t h r o u g h this step, r e m a i n e d unsettled, it could
then b e a p p e a l e d to arbitration.
This ha d
to be d o n e within a specified n u m b e r of d a y s
after final m e e t i n g or after the u n i o n r e p r e
sentative’s receipt of a draft of the minutes,
w h i c h e v e r p e r i o d w a s longer.
T h e 1942 a n d 1945 a g r e e m e n t s p r o
vided that a n y uni o n s t e w a r d or a n y gri e v
ance committee m e m b e r , upon m a k i n g a re
quest to his f o r e m a n , w a s to b e gran t e d t i m e
off without p a y for the p u r p o s e of investi
gating a n d settling g r i e v a n c e s with w h i c h h e
w a s c o n c erned.
T h e 1947 a n d 1952 a g r e e
m e n t s , h o w e v e r , w e r e m o r e specific with
respect to this subject.
T h e y p r o v i d e d that
a n y u nion steward, u p o n m a k i n g a request
to his f o r e m a n , w a s to b e gran t e d t i m e off
without p a y to investigate a n d settle g riev
a n c e s in Step 1 or 2 p r e s e n t e d b y a n e m
pl o y e e in his d e p a r t m e n t ; w h e r e a s a gri e v
a n c e c o m m i t t e e m e m b e r at a n y plant w a s
to b e g r anted similar privileges to handle
g r i e v a n c e s in Step 3 or 4 with w h i c h h e w a s
concerned.
In this connection the 1947 a n d
1952 a g r e e m e n t s also p r o v i d e d that the gri e v
ance committee m e m b e r ,
u p o n request to
the m a n a g e m e n t ’s representative, w a s to be
p e r m i t t e d to visit other d e p a r t m e n t s .
The
1947 a n d 1952 a g r e e m e n t s further provided,
in connection with the p r o c e s s i n g of gri e v
a n c e s at a particular plant in Step 4, that
a n outside representative of the union, so
certified to the c o m p a n y , w a s to be p e r m i t
ted to visit the plant.
All 4 a g r e e m e n t s p r o v i d e d that g riev
a n c e s w e r e not subject to the gri e v a n c e p r o
c e d u r e unless they w e r e p r e s e n t e d within 30
d a y s after the date of origination of the facts
o r events u p o n w h i c h the gri e v a n c e w a s
based. 2
2
Provisions relating to discharge of e
ployees included a procedure for hearings that
differed, in its early stages, f r o m the regular
grievance procedure. Within 5 days after receipt
of discharge notice, the employee presented his
written request for a hearing to the m a n a g e m e n t ’s
representative. A hearing w a s held by a c o m p a n y
official with the employee w h o m a y have been
represented by plant grievance committee m e m
bers.
If the case remained unsettled after the
c o m p a n y ’s decision, the grievance w a s to be p r e
sented to the plant m a n a g e m e n t ’s representative
within 10 days after receipt of such decision and
then processed under the regular grievance p r o
cedure beginning at Step 3 and proceeding, if nec
essary, through arbitration.
3
U n d e r all a g r e e m e n t s a single a r b i
trator acted u p o n the c a s e s reaching the final
step in the griev a n c e p r o c e d u r e . D u r i n g the
p e riod c o v e r e d b y the 1942 a n d 1945 a g r e e
m e n t s a panel of several arbitrators w a s
suggested b y o n e of the parties, f r o m w h i c h
the other party w a s to select one person.
If n o n e of the p r o p o s e d arbitrators w a s a c
ceptable, the p r o c e s s of submitting n a m e s
was
reversed, w h i c h in all c a s e s led to
a g r e e m e n t on the arbitrator.
D u r i n g the
t e r m of the 1947 a g r e e m e n t the parties
a g r e e d o n a panel of three m e n , w h o a r b i
trated in rotation. T h e fees of the arbitra
tors w e r e s h a r e d b y the c o m p a n y a n d the
union.
T h e arbitrator h a d authority only to
interpret a n d apply the provisions of the
a g r e e m e n t to a particular c a s e a n d h a d n o
authority to alter a n y provision.
All d e c i
sions w e r e final a n d binding insofar as the
cas e in dispute w a s conc e r n e d .
Classification of G r i e v a n c e s
R e a c h i n g Arbitration
G r i e v a n c e s reaching arbitration r e p
resented only a s m a l l portion of those f o r
m a l l y p r e s e n t e d at the first step of the g riev
a n c e p r o c e d u r e . T h i s is strikingly illustrated
b y the data available u p to J a n u a r y 1, 1951.
T h e s e data indicate that a n o v e r w h e l m i n g
proportion of the g r i e v a n c e s w e r e taken car e
of b y the parties t h e m s e l v e s . A l m o s t 17,000
griev a n c e s w e r e submi t t e d to the first step
of the grievance p r o c e d u r e . O v e r 15,300 of
these w e r e denied; in o v e r 90 0 the "grievant's" request w a s granted; a n d in a l m o s t 40 0
a c o m p r o m i s e w a s effected. O f the less than
14,800 grie v a n c e s pr eviously denied a n d p r e
sented at the s e c o n d step, about 1,100 w e r e
granted; about 600 c o m p r o m i s e d ; a n d about
12,600 denied.
A t the third step a p p r o x i
m a t e l y 1 1 ,600 c a s e s w e r e h a n d l e d of w h i c h
o v e r 7,300 w e r e refused; 1,200 granted; a n d
less than 50 0 c o m p r o m i s e d .
O f the m o r e
than 5 , 3 0 0 g r i e v a n c e s b r o u g h t to the fourth
step, m o r e than 3,800 w e r e denied; less than
200 granted; a n d less than 150 c o m p r o m i s e d .
O f the disputes r e m a i n i n g unsettled at the
fourth step, about 2 , 0 0 0 w e r e a p p e a l e d to
arbitration in the p e r i o d 1 9 4 2 - J a n u a r y 1951.
M a n y of these w e r e w i t h d r a w n or o t h erwise
d i s posed of before the arbitrator r e c e i v e d
the case or r e n d e r e d a n a w a r d .
S c o p e of the Study
putes
some
T h i s report e n c o m p a s s e s all dis
refer r e d to arbitration a n d o n w h i c h
type of action w a s t a k e n during the
p e r i o d f r o m A u g u s t 1942 t h r o u g h J u n e 1952
u n d e r the m a s t e r contracts negotiated with
the United S t e e l w o r k e r s of A m e r i c a (CIO).
D u r i n g this period, a l m o s t 2 , 4 0 0 disputes
arising in 15 plants of the c o m p a n y (identi
fied in table 3) w e r e submi t t e d to arbitra
tion.
O f these, o v e r half w e r e d i s p o s e d of
prior to the a r b i t r a t o r s r e n d e r i n g a deci
sion— m o r e than 1, 150 w e r e w i t h d r a w n b y the
union, a n d about 100 w e r e settled b y the
parties.
In o v e r 100 cases, a n arbitration
h e a r i n g h a d not yet b e e n held b y July 1, 1952.
T h e following sections deal with the
classification a n d analysis of the 1,003 c a s e s
o n w h i c h the arbitrator acted, either in the
f o r m of d e nying or granting the grievantfs
request in w h o l e or in part, or b y referring
the c a s e b a c k to the parties for further n e g o
tiation or additional information.
T h e y are
treated a c c o r d i n g to the subject involved,
action taken, plant origin, contract u n d e r
w h i c h they arose, a n d the basic issue a n d its
justification outlined in the grievant*s claim.
G r i e v a n c e s b y Subject
M o r e than three-fourths (788) of the
1,003 c a s e s w e r e related specifically either
to w a g e s or job classifications, or p r o b l e m s
c o n c e r n i n g seniority (table 2).
M o s t of the
w a g e g r i e vances w e r e o ver h o u r l y or i n c e n
tive rates established for a specified job or
r equests for a d j u s t m e n t s in h o urly or i n c e n
tive rates. A l m o s t two-thirds of the senior
ity griev a n c e s reac h i n g arbitration resulted
f r o m layoff, d o w n g r a d i n g , or " b u m p i n g , " a n d
a n additional 20 p e r c e n t c o n c e r n e d p r o m o
tion p r o b l e m s .
N e x t in p r e v a l e n c e w e r e those gri e v
a n c e s c o n c e r n i n g discipline or w o r k force
a s s i g n m e n t . C o m b i n e d , these categories a c
c o unted for a l m o s t 15 p e r c e n t of the total
n u m b e r of g r i e v a n c e s r e a ching arbitration.
D i s a g r e e m e n t s o v e r s u c h issues as job a s
signment,
vacation rights, w o r k schedule,
o r jobs exc l u d e d or included .n the b a r g a i n
ing- unit, w e r e the c a u s e s of m o s t of the
r e m a i n i n g grievances.
Grievances by T y p e
of A c tion
T h e arbitrator% disposition of a dis
pute d e p e n d s to a great extent u p o n his inter
pretation of the clause of the collective b a r
gaining a g r e e m e n t u n d e r w h i c h the g r ievance
a r o s e a n d his evaluation of Jie evidence s u b
m i t t e d b y the parties.
B e f o r e considering
the substantive issues, h o w e v e r , the a r b i
trator h a s to decide, first,what types of g riev
a n c e s h e c a n arbitrate a n d h o w far his juris
diction reaches, a c c o r d i n g to the t e r m s of
4
TABLE
2.— Distribution of grievances on w h i c h arbitrators r e n d e r e d decisions,
final determination, B e t h l e h e m Steel C o m p a n y , 1 942-52
b y subject a n d
R e fe r r e d b a ck to
p a r tie s fo r fu rth e r
n e g o t ia t io n s o r
a d d ed in fo r m a t io n
P e n d in g o r
S e ttle d o r
d is p o s it io n
w it h d r a w n
u n recorded
S u b je c t
T ota l
G ra n te d
P a r tia lly
g ra n ted
D e n ie d
D is m is s e d
fo r la c k o f
ju r is d ic t io n
D is m is s e d
as
u n t i m e ly
T o t a l .................... ..............................................
1 ,0 0 3
200
121
503
31
57
35
56
W a ges o r jo b c la s s ific a t io n _
S e n i o r i t y ________________________________
D i s c i p l i n e _______________________________
W o r k f o r c e a s s ig n m e n t
J o b a s s i g n m e n t ________________________
V a c a t i o n _________________________________
W o r k s c h e d u le
B a r g a in in g u n it ________________________
T r a n s f e r .............................................................
O th e r w o r k i n g c o n d i t i o n s 1 __ _______
S u b je c t n o t i n d i c a t e d __________________
485
303
89
53
14
6
6
5
4
23
15
95
71
16
7
5
1
1
4
“
71
20
15
9
1
1
4
-
248
143
54
24
9
2
5
4
3
11
~
26
1
1
1
2
~
21
22
3
1
1
1
8
10
20
1
4
-
14
26
7
2
7
_
1 G r i e v a n c e s o v e r th e f u r n is h in g o f w o r k c lo t h i n g w it h o u t c o s t t o th e e m p l o y e e , i n s t a l l a t i o n o f b u l l e t i n b o a r d s
t e l e p h o n e s , a n d p l a n t i m p r o v e m e n t s f o r s a f e t y r e a s o n s w e r e a m o n g t h e s u b j e c t s i n c lu d e d in t h i s g r o u p .
the a g r e e m e n t . Secondly, h e m u s t d e t e r m i n e
w h e t h e r the specific t i m e limitations, b e t w e e n
steps of the grievance p r o c e d u r e a n d after
the final step,have b e e n o b s erved. Both, lack
of timeliness a n d of jurisdiction w e r e s o m e
t i m e s c h a r g e d b y the c o m p a n y .
In all, 57
c a s e s w e r e d i s m i s s e d for untimeliness, a n d
31 w e r e d r o p p e d b e c a u s e the arbitrator ruled
that h e l a cked jurisdiction (table 2).
T h e grievants* requests in about 50
p e r c e n t of the c a s e s w e r e denied b y the a r b i
trator; in 20 p e r c e n t of the c a s e s they w e r e
granted; a n d a n additional 12 p e r c e n t of the
g r i e v a n c e s w e r e partially de c i d e d in favor of
the grievant. T h e arbitrator ref e r r e d about
10 p e r c e n t of the disputes b a c k to the parties
for further negotiation or for additional in
f ormation.
O f these cases, m o r e than half
w e r e p e n d i n g at the t i m e of the study or their
disposition w a s u n k n o w n to the B u r e a u of
L a b o r Statistics; the r e m a i n d e r w e r e either
settled b y the parties or w i t h d r a w n .
In t e r m s of subjects, less than half
of the seniority a n d w o r k a s s i g n m e n t g r i e v
a n c e s w e r e denied, while in virtually all
other classifications 50 p e r c e n t or m o r e of
the g r i e v a n c e s w e r e denied.
Approximately
23 p e r c e n t of the seniority g r i e v a n c e s a n d
near l y 20 p e r c e n t of the w a g e g r i e v a n c e s
w e r e gran t e d in full.
and p ay
T h e m o s t prevalent type of arbitra
tion c a s e arising at the S p a r r o w s Point plant
a r o s e out of a n unusual situation relating to
seniority.
W o m e n e m p l o y e e s , although rel
atively r a r e a m o n g the p r oduction a n d m a i n
tena n c e w o r k e r s of the c o m p a n y a s a whole,
constituted a l m o s t the entire w o r k i n g force
of o n e of the s m a l l units at this plant.
A
single layoff action involving w o m e n e m p l o y
e e s a c c o u n t e d for 80 of the 115 seniority
cases; the separate cases, h o w e v e r , w e r e
h a n d l e d simultaneously b y the arbitrator.
A l m o s t 40 p e r c e n t of the c a s e s f r o m this
plant dealt with w a g e s a n d job classification.
A n equal p r o p ortion of seniority a n d
w a g e g r i e v a n c e c a s e s (40 percent) a r o s e at
the B e t h l e h e m plant.
T h e seniority g riev
ances, in a large n u m b e r of cases, resulted
f r o m returning vete r a n s being g r anted " s u
perseniority" rights. T e n p e r c e n t of the r e
m a i n i n g gr i e v a n c e s at the plant c o n c e r n e d
disciplinary action.
A t the L e b a n o n a n d J o h n s t o w n plants,
w a g e s or job classification c a s e s p r e d o m i
nated, w h e r e a s at W i l l i a m s p o r t two-thirds
w e r e seniority cases, the m a j o r i t y of w h i c h
involved v e t e r a n s 1 "superseniority" rights.
A p p r o x i m a t e l y 40 p e r c e n t of the c a s e s ari s
ing at the Steelton plant pertained to w a g e s
or job classifications.
G r i e vances by Contract
G r i e v a n c e s b y Plants
T h e p r e v a l e n c e of the vari o u s types
of griev a n c e c a s e s differed to s o m e extent
f r o m plant to plant.
At Lackawanna, where
23 p e r c e n t of the total n u m b e r of c a s e s arose,
w a g e g r i e v a n c e s p r e d o m i n a t e d , constituting
m o r e than 60 p e r c e n t of those that a r o s e at
this
plant (table 3).
M o r e than two-thirds of the 1,003
g r i e v a n c e c a s e s a r o s e u n d e r the a g r e e m e n t s
in effect f r o m A u g u s t 1942 to April 1947,
a n d less than one-third u n d e r the a g r e e m e n t
in effect f r o m A pril 1947 t h r o u g h J u n e 1952,
the termin a t i o n date of this analysis.
The
p r o p ortion of g r i e v a n c e s b y subject varied
a m o n g these contracts.
5
TABLE
P la n t
T ota l
A l l p l a n t s _________________
1 ,0 0 3
B e t h l e h e m _______________
C h ic a g o (2 p l a n t s ) ____ _
J o h n s t o w n __ ________ __
L a c k a w a n n a ______________
L e b a n o n ___________________
L e e t s d a l e _________________
L o s A n g e le s 2 _____ __
P o t t st o w n _________________
R a n k i n _____________________
S e a ttle 2 ....................... ...........
S ou th San F r a n c i s c o 2___
--------S p a r r o w s P o in t
S t e e l t o n ----------------------------W i l l i a m s p o r t ____________
199
5
158
234
62
3
2
3
1
1
6
254
43
32
3.— Distribution of grievances on w h i c h arbitrators r endered decisions,
by plant an d subject, B e t h l e h e m Steel C o m p a n y , 1942-52
W ages
and jo b S e n io r
c la s s ifi
ity
c a t io n
485
80
3
88
141
38
1
2
2
1
1
6
98
17
7
303
79
35
26
14
115
13
21
D is c i
p lin e
89
20
1
19
12
3
2
1
20
9
2
W ork
fo rc e
a s s ig n
m ent
53
6
4
38
5
“
Job
a s s ig n
m ent
U n d e r the contract effective f r o m
1945 to M a y 1947, the m o s t prevalent type
of g r ievances h a n d l e d b y the arbitrator
w e r e those relating to seniority.
M o s t of
these o c c u r r e d a s a result of " b u m p i n g , "
d o w n g r a d i n g , or layoff actions w h i c h j e o p
a r d i z e d the a g g r i e v e d e m p l o y e e s * rights to
a particular job. A v e r y influential factor
contributing to the c a u s e of these gri e v
a n c e s w a s the p r o b l e m of returning vet
erans, both those exercising their r e e m
p l o y m e n t rights a n d those being granted
so-called "superseniority" rights.
In a
considerable n u m b e r
of seniority g riev
ances, the grievants w e r e w o m e n
hired
during W o r l d W a r II a n d then, after the
w a r , laid off.
W o r k force a s s i g n m e n t , job a s s i g n
m e n t , a n d discipline gri e v a n c e s o c c u r r e d
m o r e frequently u n d e r the a g r e e m e n t effec
tive in 1947 than u < | e r pre v i o u s a g r e e
ments.
O t h e r types of g r i e vances did not
s h o w significant variations a m o n g contract
periods.
G r i e v a n c e Issues
T h e rest of this chapter is d e v o t e d
to a discussion of the types of grie v a n c e s
included in the m a i n categories of issues
in w h i c h the arbitration c a s e s w e r e divided.
InforPFRASER
a r t s II, III, a n d I V of this report, the
Digitized
S u b je c t
not
in d i
ca te d
W ork
s c h e d u le
B a r
g a in in g
un it
T ran s
fe r
14
6
6
5
4
23
15
2
2
9
1
-
_
3
1
1
1
1
2
1
1
1
2
1
“
7
1
1
7
3
4
-
6
6
3
'
'
1
1
1
3
■
1 G r i e v a n c e s o v e r th e fu r n is h in g o f w o r k c lo t h in g w ith o u t c o s t t o th e e m p l o y e e , in s t a ll a t i o n
t e le p h o n e s , an d p la n t im p r o v e m e n t s f o r s a f e t y r e a s o n s w e r e a m o n g t h o s e in c lu d e d in t h is g r o u p .
2 C o v e r s p e r i o d w h e n p la n t w a s in B e t h le h e m S t e e l C o m p a n y .
U n d e r the 1942 a g r e e m e n t , effec
tive until April 1945, the m o s t prevalent
type of arbitration c ase c o n c e r n e d w a g e s
or job classifications.
T h e factors w h i c h
m a y h a v e contributed to the relatively large
n u m b e r of w a g e c a s e s during this pe r i o d
a r e d i s c u s s e d in P a r t I V of this study.
O th e r
w o r k in g
c o n d i
t io n s 1
V a ca
t io n
of
.
b u lle t in b o a r d s an d p a y
major
categories a r e r e e x a m i n e d in the
light of the arbitrators* p r o b l e m s a n d d e
cisions.
Wages
o r J o b Classification
W a g e rates or job classification.—
All a g r e e m e n t s g a v e m a n a g e m e n t the right
to establish n e w rates a n d to c h a n g e old
rates in specified c a s e s of c h a n g e d or n e w
m e t h o d s , p r o c e s s e s or equ i p m e n t , etc.,
p r o v i d e d that the p r e s c r i b e d p r o c e d u r e for
putting n e w rates into effect w a s followed.
T h e s e rates could b e challenged t h r o u g h
the g r ievance p r o c e d u r e . T h e 1945 a g r e e
m e n t r e f e r r e d to the Directive O r d e r of the
National W a r L a b o r B o a r d of 1944 w h i c h
o r d e r e d the c o m p a n y a n d the uni o n to n e
gotiate for the elimination of intraplant in
equities b y redu c i n g the n u m b e r of job clas
sifications, placing the jobs in their p r o p e r
relationships, a n d assigning rates to the
classifications in a c c o r d a n c e with jointly
acceptable standards. W i t h the c o m p l e t i o n
of this p r o c e s s , actually a c c o m p l i s h e d in
1947, c h a n g e s of hourly rates w e r e to be
made
t h r o u g h m e t h o d s d e s c r i b e d in the
agreements.
A p p r o x i m a t e l y two-thirds of the
c a s e s relating to
w a g e p r o b l e m s dealt
with w a g e rates or job classification g r i e v
a n c e s (table 4).
T h e nature of the g r i e v
ances, at least insofar as they related to
hourly rates or job classification, w e r e
m a r k e d l y c h a n g e d b y the 1947 a g r e e m e n t
o n the elimination of w a g e rate inequities.
In brief, griev a n c es alleging a w a g e in
equity, w h i c h constituted a serious p r o b
l e m u n d e r the 1942 a g r e e m e n t ,
became
inadmissible with the rationalization of the
w a g e structure. T h i s d e v e l o p m e n t is dis
c u s s e d in detail in P a r t I V of this study.
6
TABLE
4.— W a g e s or job classification:
Distribution of grievances on w h i c h arbitrators rendered decisions,
by issue an d final determination, B e t h l e h e m Steel C o m p a n y , 1942-52
Issu e
T ota l
T o t a l --------------------------------------------------------
485
W a g e r a t e s o r j o b c l a s s i f i c a t i o n ___
B a s is o f w a g e p a y m e n t — ---------------P r e m i u m p a y __ ______________________
P a y w h e n t e m p o r a r i l y a s s i g n e d ____
N o n p r o d u c t iv e p a y
__ — -----------------R e p o r t p a y _____________________________
B a ck p a y
_____________________________
D o w n t i m e ______________________________
______________________
S h o r t -h a n d p a y
M e t h o d o f w a g e c o m p u t a t io n -------------D a ily m in im u m g u a r a n t e e ___________
M i s c e l l a n e o u s _________________________
326
40
21
19
15
13
8
8
17
10
3
5
G ra n ted
P a r t ia lly
g ra n te d
95
59
4
7
4
3
8
1
1
6
1
1
M a n y of the w a g e rate o r job clas
sification g r i e v a n c e s involved a requ e s t for
a n a d j u s t m e n t in incentive rates.
These
g r i e v a n c e s fell into t w o g r o u p s — those o b
jecting to a c h a n g e d or n e w rate set b y
m a n a g e m e n t , a n d those requesting a n in
c r e a s e in the incentive rate.
In the f o r m e r group, the grievant1s
c l a i m of i n a d e q u a c y a n d unfairness of the
c h a n g e d or n e w incentive rate set b y m a n
a g e m e n t w a s generally b a s e d o n the c o n
tention that w o r k l o a d , job responsibility,
or t i m e r e q u i r e m e n t for p e r f o r m i n g the
job h a d increased, or at least h a d not d e
creased; the n e w — c hallenged— rate h a d often
b e e n set b e c a u s e of technological c h a n g e s
s u c h a s a c h a n g e in p r o cess, operation,
m e t h o d of production, e q u i pment, or c h a n g e
in product. T h e c h a r g e of i n a d e q u a c y w a s
also occasionally b a s e d o n the contention
that the c h a n g e d rate w a s causing a r e d u c
tion in earnings, did not c o m p e n s a t e for
the additional job functions involved, or
w a s not w a r r a n t e d b y the technological
c h a n g e involved.
It w a s also c l a i m e d in
some
c a s e s that the disputed rates h a d
b e e n set illegally a n d that the c o m p a n y
h a d failed to u s e the correct techniques
in m a k i n g t i m e studies in o r d e r to set the
p r o p e r rate.
In the other g r o u p
of incentive
rate cases, a n inc r e a s e of the rate w a s
r e q u e s t e d for r e a s o n s s uch as i n c r e a s e d
w o r k l o a d or job r e q u i r e m e n t s .
Additional
r e a s o n s m e n t i o n e d included reduction in
size of c r e w , handling of heavier m a t e
rials, n o relief period, or a c h a n g e in the
m e t h o d of c o m p u t i n g earnings. G r i e v a n c e s
w e r e also occasionally b a s e d o n the c l a i m
of the p e r f o r m a n c e of duties similar to the
duties of other e m p l o y e e s receiving a higher
rate.
B a s i s of w a g e p a y m e n t . — A n u m b e r
the basis of w a g e p a y
Digitized for
ofFRASER
disputes o v e r
D e n ie d
D is m is s e d D is m is s e d
as
fo r la c k o f
ju r is d ic t io n
u n t im e ly
R e fe r r e d b a ck to
p a r t i e s f o r fu r t h e r
n e g o t i a t io n s o r
a d d e d i n fo r m a t i o n
P e n d in g o r
S e t t le d o r
d is p o s it io n
w it h d r a w n
u n recorded
71
248
26
21
10
14
59
2
1
1
2
4
2
160
23
12
13
11
3
3
4
6
7
2
4
19
1
1
1
11
9
1
9
2
-
-
-
2
2
-
1
1
-
-
'
*
-
'
-
7
1
-
1
1
1
m e n t — hourly or incentive— a n d the m e t h o d
of w a g e c o m p u t a t i o n h a d to be arbitrated
(table 4).
In m a n y of these cases, hour l y
rated e m p l o y e e s c l a i m e d that they should
be p l a c e d o n a n incentive w a g e plan b e c a u s e
of their contribution to i n c r e a s e d p r o d uction
a n d / o r the installation of n e w e q uipment;
b e c a u s e others w e r e w o r k i n g u n d e r s u c h a
s y s t e m a n d they t h e m s e l v e s h a d w o r k e d o n
a n incentive basis in the past; or in o r d e r
to eliminate w a g e differentials.
T h e type of p a y a n e m p l o y e e should
receive w h e n w o r k i n g o n a repair turn w a s
involved in a f e w grievances.
In these
c a s e s it w a s c o n t e n d e d that a n e m p l o y e e
should b e paid o n the basis of his past a v
e r a g e earnings or the earnings received
o n the next operating turn rather than
straight hourly rates.
T h e m e t h o d u s e d in c o m p u t i n g a n
e m p l o y e e 1s earnings w a s in dispute in 10
cases.
G r i e v a n c e s of this type included
requests that the c o m p a n y u s e its old m e t h
o d of c o m p u t i n g piece-rate earnings b e c a u s e
the n e w m e t h o d c a u s e d the grievant to suffer
a loss of earnings; or that the c o m p a n y
c h a n g e the m e t h o d u s e d in calculating a v
e r a g e hourly earnings in o r d e r to det e r
m i n e the p r o p e r w a g e s for e x p e r i m e n t a l
w o r k . T h e grievants in s o m e of these c a s e s
also c h a r g e d that they w e r e n e v e r i n f o r m e d
of the m e t h o d of c o m p u t a t i o n used.
P r e m i u m p a y .— S o m e c a s e s w e r e
b a s e d o n a c l a i m b y the w o r k e r that h e h a d
not r e c e i v e d p r e m i u m p a y to w h i c h h e felt
entitled (table 4).
S u c h c a s e s involved
either the sixth or the seventh consecutive
d a y of the e m p l o y e e 1s w o r k w e e k , w h i c h
w e r e p r e m i u m days, with the grievant p r o
testing that h e h a d not r e c e i v e d the p r o p e r
rate or that he h a d not b e e n permitted, or
called, to w o r k o n a p r e m i u m d a y w h e n
his w e e k fs schedule led h i m to expect it.
7
N o n p r o d u c t i v e p a y .— T h e issue of
w h e t h e r e m p l o y e e s should be paid for n o n
productive t i m e s u c h as t i m e spent m e e t i n g
with the superintendent, lunch periods, rest
periods, holidays not w o r k e d , or t i m e not
w o r k e d d u e to a n alleged lockout, w a s in
dispute in m o s t of the c a s e s dealing with
nonproductive p a y (table 4).
In several
gr i e v a n c e s o v e r p a y for t i m e spent m e e t i n g
with the superintendent the grievants c l a i m e d
that they
were
entitled to p r e m i u m p a y
b e c a u s e the m e e t i n g s w e r e held or c o n
tinued after w o r k i n g hours.
T h e holiday
p a y r e q u e s t e d b y e m p l o y e e s not scheduled
to w o r k o n a holiday w a s b a s e d o n the fact
that e m p l o y e e s w h o did w o r k rec e i v e d p r e
m i u m pay.
W o m e n e m p l o y e e s req u e s t e d
p a y for rest peri o d s that w e r e r e q u i r e d b y
a State statute.
A n o t h e r grievant c l a i m e d
h e should h a v e b e e n pai d for t i m e lost while
waiting for a closed truck after he h a d r e
fused to ride in a n o p e n truck b e c a u s e of
i n c l e m e n t w eather.
In a f e w g r i e v a n c e s reaching arbi
tration, report (call-in) p a y allegedly due
u n d e r the t e r m s of the a g r e e m e n t w a s
claimed.
The
r e a s o n in m o s t of these
c a s e s w a s the unavailability of regular w o r k
d u e to s u c h factors as w e a t h e r conditions
or m a c h i n e or e q u i p m e n t b r e a k d o w n , w h i c h
resulted in a n e m p l o y e e being sent h o m e
without w o r k i n g o r c o m p l e t i n g w o r k for the
specified n u m b e r of hours, or being a s
signed to other than his regular w o r k .
In
one case, the t e l e g r a m notifying the g riev
ant not to report did not r e a c h h i m until
after he h a d rep o r t e d to w o r k .
O t h e r w a g e g r i e v a n c e s .— M o s t of
the w a g e disputes arising f r o m t e m p o r a r y
a s s i g n m e n t s w e r e the result of a n e m
ployee* s c l a i m that h e w a s i m p r o p e r l y paid
at his regular rate w h e n t e m p o r a r i l y a s
signed to w o r k o n a higher rated job. T h e
r e a s o n s for this c l a i m w e r e p r e v i o u s r e
ceipt of the higher rate, past practice, or
p e r f o r m a n c e of the s a m e duties as a higher
rated e m p l o y e e .
D e l a y s d u e to m a c h i n e b r e a k d o w n ,
setting u p of n e w jobs, defective material,
or c h a n g e in p r o c e s s , c a u s e d e m p l o y e e s
in s o m e c a s e s to lose t i m e a n d production
w h i c h resulted in a reduction in earnings.
T h e s e e m p l o y e e s r e q u e s t e d either r e i m
b u r s e m e n t of earnings lost, p a y for delays
in e x c e s s of one hour, or the establish
m e n t of a schedule of a l l o w a n c e s for e a r n
ings lost d u e to m a c h i n e b r e a k d o w n s .
In m o s t of the griev a n c e s c o n c e r n
ing short - h a n d pay, w o r k e r s a s k e d that the
w a g e s of absent m e m b e r s of their c r e w be
divided a m o n g those working.
This claim
w a s b a s e d o n the p r o d uction of the s a m e
a m o u n t of w o r k although they w o r k e d shorthanded.
B a c k p a y w a s a s k e d for in a f e w
g r i e v a n c e s resulting f r o m the settlement
of a p r e v i o u s grievance, a reclassification,
or a denial of a t e m p o r a r y a s s i g n m e n t . In
m a n y of the other w a g e grievances, as well
as those conce r n i n g subjects s u c h as dis
cipline, seniority, etc., b a c k p a y w a s a s k e d
for in conjunction with the p r i m a r y issue
involved.
In m a n y
other griev a n c e s the
e m p l o y e e a s k e d that the a w a r d b e m a d e
retroactive.
Seniority
T h e s a m e criteria for p r o m o t i o n
to n o n s u p e r v i s o r y positions, layoff,
and
recall w e r e p r o v i d e d for in all of the a g r e e
m e n t s : If ability to p e r f o r m the w o r k a n d
physical fitness w e r e relatively equal, length
of service w a s to govern. E a c h a g r e e m e n t
p r o v i d e d that the seniority units w e r e to be
negotiated o n a plant-by-plant basis.
T h e 1947 a g r e e m e n t w a s the first
to specify the m e t h o d to b e u s e d in filling
t e m p o r a r y vacancies.
In s u c h cases, the
c o m p a n y w a s to consider length of service
only to a d e g r e e consistent with efficiency
of the operation a n d the safety of e m p l o y e e s .
E a c h a g r e e m e n t contained a clause
guaranteeing r e e m p l o y m e n t rights to r e
turning veterans. V e t e r a n s w e r e also p e r
mitted to count the t i m e spent in the s e r v
ice as t i m e w o r k e d for seniority p u r p o s e s .
T h e 1947 a g r e e m e n t also included a p r o v i
sion that the c o m p a n y w o u l d endeavor, as
job v a c a n c i e s b e c a m e available, to m o v e
any e m p l o y e e w h o w a s r e e m p l o y e d under
the military clause to or t o w a r d the job
that h e m i g h t h a v e attained if he h a d not
entered the A r m e d F o r c e s .
M o s t seniority g r i e v a n c e s reaching
arbitration resulted f r o m curtailment of
plant operations d u e to lack of w o r k , or
technological c h a n g e s causing a b o l i s h m e n t
of jobs or elimination of specified m a c h i n e s ,
w h i c h r equired the laying off or d o w n g r a d
ing of surplus p e r s o n n e l (table 5).
The
other large g r o u p of seniority c a s e s dealt
with p r o m o t i o n s m a d e or v a c a n c i e s filled
as a result of n o r m a l e m p l o y e e t urnover
or the creation of n e w jobs d u e to i n c r e a s e d
p roduction or plant expansion.
8
TABLE 5 .—Seniority: Distribution of grievances on which arbitrators rendered decision s,
by issue and final determination, Bethlehem Steel Company, 1942-52
Issue
Total
Total _________ *____________________
303
Layoff, bumping, or down
grading —
Promotion _________________________
Temporary vacancy_______________
Procedure _________________________
Transfer __________________________
Length of service credit---------------Seniority l i s t ______________________
Reassignment_____________________
R ecall_____________________________
Miscellaneous_____________________
194
61
12
7
7
5
5
4
2
6
Dismissed Dismissed
for lack of
as
jurisdiction untimely
Referred back to
parties for further
negotiations or
added information
Pending or
Settled or
disposition
withdrawn
unrecorded
Partially
granted
Denied
71
20
143
1
22
20
26
51
14
4
1
1
6
5
1
4
1
1
1
1
78
36
6
2
5
4
5
2
5
1
-
14
6
1
1
~
18
1
1
-
26
-
'
'
Granted
In the c a s e s studied, the grievants
generally m a i n t a i n e d that their greater s e n
iority (length of service), or greater s e n
iority a n d relatively equal ability, entitled
t h e m to b e p r o m o t e d to a v a c a n c y that
existed, or not to be d o w n g r a d e d or laid
off. It w a s also claimed, in a f e w instances,
that experience, skill, or physical fitness,
in addition to greater seniority, entitled
the grievant to the p r o m o t i o n or, in the
cas e of a reduction in force, to retention
o n his job.
In addition to greater
seniority,
c l a i m s of i m p r o p e r p r o m o t i o n , layoff, d o w n
grading, b u m p i n g , or recall w e r e b a s e d o n
various other reasons.
F o r e x a m p l e , one
grievant1s c l a i m to a p r o m o t i o n w a s b a s e d
o n the fact that h e h a d greater seniority b y
virtue of having previously a c c e p t e d t e m
p o r a r y a s s i g n m e n t s w h i c h the p r o m o t e d
e m p l o y e e h a d refused.
Another
claimed
p r o m o t i o n to a job a n d also d e m a n d e d a
trial pe r i o d in o r d e r to d e m o n s t r a t e his
ability to p e r f o r m the higher rated w o r k .
the issue in a n u m b e r of grievances. T h e
failure to establish a seniority unit for a
n e w d e p a r t m e n t g a v e rise to a f e w of the
disputes
involving p r o m o t i o n .
In these
cases, it w a s c l a i m e d that plant seniority
should g o v e r n the filling of jobs in this
n e w d e p a r t m e n t . O t h e r g r i e vances involved
the p r o b l e m of w h i c h seniority unit should
govern; e.g., a grievant c l a i m e d that, al
t h o u g h h e h a d less job seniority, h e should
not h a v e b e e n d o w n g r a d e d b e c a u s e of his
greater d e p a r t m e n t a l seniority.
A n u m b e r of g r i e vances a r o s e o v e r
filling t e m p o r a r y vac a n c i e s o c c u r r i n g in a
higher rated job or in a job with p r o m o tional opportunities.
A m o n g such cases
w a s the c l a i m of a w o r k e r w h i c h w a s b a s e d
not only o n his seniority but also o n a n
alleged c o m p a n y rule that g a v e h i m the
right to fill a v a c a n c y o n a specified m a
chine.
The
right of a n e m p l o y e e with
greater length of service to b e t ransferred
to a job of equal or l o w e r p a y that h a d
p r o m o t i o n a l opportunities, or that w a s c o n
sidered a p r o m o t i o n b y the c l a i m a n t b e
c a u s e of its desirability, including w o r k o n
another
shift, w a s the c a u s e of several
grievances.
Seniority gr i e v a n c e s involving the
M ba r gaining unit" also w e r e s u b m i t t e d to
arbitration.
In a f e w of these pertaining
to p r o m o t i o n s , the grievant m a i n t a i n e d that
b e c a u s e of his greater unit seniority, in
a c c o r d a n c e with past practice, h e should
h a v e b e e n p r o m o t e d to the job outside the
bargaining unit; or that the job w a s a nons u p e r v i s o r y one, therefore within the b a r
gaining unit.
In a f e w cases, the union
objected to s u p e r v i s o r y e m p l o y e e s being
p e r m i t t e d to "blimp" e m p l o y e e s in the b a r
gaining unit.
Veterans
returning
from
World
W a r II could exert their r e e m p l o y m e n t or
their seniority or "superseniority" rights.
T h i s re stilted in s o m e n o n v e t e r a n e m p l o y
ees being b u m p e d , d o w n g r a d e d , or laid off.
In g r i e v a n c e s o c c u r r i n g as a result of this,
the affected n o n v e t e r a n usually b a s e d his
c l a i m o n greater seniority.
T h e type of seniority unit— in the
plant, in the d e p a r t m e n t , or on-the-job—
that should g o v e r n in filling v a c a n c i e s or
Digitized for in
FRASER
laying off or d o w n g r a d i n g e m p l o y e e s w a s
M o s t of the c a s e s in w h i c h the
veterans w e r e the grievants involved the
c l a i m to p r o m o t i o n to jobs filled while they
w e r e in military service, b y virtue of their
9
having greater seniority than the n o n v e t
erans promoted.
In on e case, h o w e v e r , a
n o n v e t e r a n with less seniority than a vet
e r a n w h o s e length of service included t i m e
spent in military service c l a i m e d the right
to a p r o m o t i o n b a s e d o n his ability a n d
willingness to d o the w o r k .
T h e c a s e s involving the laying off
of w o m e n hir e d during the w a r p e r i o d h a v e
a l ready b e e n m e n t i o n e d . T h e s e e m p l o y e e s ,
claiming that they w e r e c o v e r e d b y the
seniority provisions of the a g r e e m e n t , felt
that their seniority rights h a d b e e n violated
w h e n they w e r e laid off a n d m e n with al
legedly less seniority w e r e retained.
pension, w a s contested a s unfair in only
six of the grievances. S u s p e n s i o n w a s in
volved in the bulk of the r e m a i n i n g disci
plinary grievances.
T h e type of penalty
i m p o s e d o n a n e m p l o y e e usually d e p e n d e d
u p o n the seri o u s n e s s of the offense as well
as the e m p l o y e e 1s past r e c o r d a n d the s u r
r ounding c i r c u m s t a n c e s .
A s a result, the
grievant in s o m e cases, although admitting
his guilt, c o n t e n d e d that the d e g r e e of dis
ciplinary action w a s not wa r r a n t e d . Usually
the grievant, c l a i m i n g that the disciplinary
action w a s
improper
or excessive, r e
qu e s t e d r e i m b u r s e m e n t of w a g e s lost.
Job A s s i g n m e n t
A n o t h e r g r o u p of g r i e v a n c e s in
vo l v e d the u n i o n 1s request for posting a n d
publishing of pertinent seniority data, a n d
for consultation with the union in seniority
cases.
In o n e c a s e the union r e q u e s t e d
s u c h consultation to b e held prior to the
c o m p a n y adopting " w e e k - a b o u t " scheduling,3
b e c a u s e senior m e n felt that they h a d b e e n
a d v e r s e l y affected b y the scheduling.
Discipline
T h e right to discharge, suspend,
or other w i s e discipline a n e m p l o y e e for
just c a u s e w a s g u a r a n t e e d to m a n a g e m e n t
u n d e r the t e r m s of the a g r e e m e n t s in ef
fect since 1942.
"Just c a u s e " for disci
plinary action w a s not defined in a n y of the
a g r e e m e n t s except with reference to the
strike prohibition provisions, the violation
of w h i c h specifically g a v e the c o m p a n y the
right to s u s p e n d a n d later to discharge.
Disciplinary action of the c o m p a n y
w a s the c a u s e of 89 disputes b rought before
arbitrators (table 2). In m o r e than a fifth
of the discipline grievances,
c h a r g e s of
negligence w e r e cited.
In another fifth of
the cases, insubordination or violation of
c o m p a n y rules w a s charged.
Poor wo r k
m a n s h i p a n d violation of the no-strike p r o
visions w e r e the c a u s e s of disciplinary a c
tion in slightly less than a fifth of the cases.
J o b a s s i g n m e n t fell within the p r e
rogatives of m a n a g e m e n t .
In m o s t of the
14 c a s e s arising in this a r e a (table 2) the
e m p l o y e e objected to p e r f o r m i n g specified
duties a n d r e q u e s t e d relief f r o m p e r f o r m
ing t h e m .
In o n e case, the grievant r e
qu e s t e d alternatively a n a d j u s t m e n t in his
w a g e rate.
Generally, c l a i m s w e r e m a d e
that certain duties e x c e e d e d the scope of
the e m p l o y e e * s job classification or d e
scription, w e r e
not being p e r f o r m e d b y
others o n similar jobs, o r w e r e included
in his job description but e x c l u d e d f r o m
the job description of other w o r k e r s .
In a f e w cases, the e m p l o y e e o b
jected to being requ i r e d to p e r f o r m his
regular duties w h e n a s s i g n e d to p e r f o r m
others; to being r e q u i r e d to p e r f o r m out
side duties du r i n g slack periods; or to
having his duties p e r f o r m e d b y others.
Objection b y the union to the p e r f o r m a n c e
of production a n d m a i n t e n a n c e w o r k b y a n
e m p l o y e e outside of the bargaining unit w a s
the basis of o n e arbitrated dispute.
Work
Force Assignment
N o specific clause g o v e r n i n g w o r k
force a s s i g n m e n t w a s included in a n y of
the a g r e e m e n t s with the exception of the
clause defining m a n a g e m e n t 1s rights, w h i c h
granted m a n a g e m e n t the exclusive right to
increase or r e d u c e the w o r k i n g force, as
D i s c h a r g e , the m o s t s e v e r e disci
long as other provisions of the a g r e e m e n t s
plinary action that the c o m p a n y could i m
p o s e u p o n a n e m p l o y e e , w a s challenged as
w e r e not violated. H o w e v e r , the so-called
"local practice" provision included in the
unjust a n d i m p r o p e r in 17 of the 89 cases.
1947 a g r e e m e n t p r o v i d e d that should m a n
D e m o t i o n , less s e v e r e than d i s c h a r g e but
agement
c h a n g e or eliminate a n y
local
a m o r e s e v e r e disciplinary action than s u s
practice or c u s t o m then in effect a n d not
c o v e r e d b y a n y p r o v ision of the a g r e e m e n t ,
3
A n a r r a n g e m e n t u nder w hich , du rin g a
the
e m p l o y e e affected b y s u c h c h a n g e could
p e r io d o f te m p o r a r y w o rk sh o r ta g e , h a lf the w ork
s e e k recourse, if w a r r a n t e d , t h r o u g h the
f o r c e w as sch ed u led fu ll-t im e 1 w eek and the
regular g r i e vance p r o c e d u r e .
oth er h a lf the fo llo w in g w eek .
http://fraser.stlouisfed.org/
2 9 9 82 3 0 - 5 4 - 3
Federal Reserve Bank of St. Louis
10
P r o b l e m s dealing with the size of
the w o r k force w e r e the c a u s e of 53 dis
putes r eaching arbitration (table 2).
Ex
cessive o r i n c r e a s e d w o r k l o a d , a n d safety
a n d health m e a s u r e s w e r e the m o s t c o m
m o n r e a s o n s cited b y the e m p l o y e e s in their
c l a i m s for relief. L o s s of earnings, length
of relief p e r i o d (spell-out time), or in
c r e a s e d p roduction w a s cited a s justifica
tion for requesting a n i n c rease in the size
of the c r e w in several disputes.
In about a fourth of these cases,
objection w a s m a d e to the c o m p a n y ’s r e
ducing the original size of the c r e w , o n the
basis that operation changes, c h a n g e in
e q u i p m e n t or in plant, o r in the type of
w o r k p e r f o r m e d , did not w a r r a n t a r e d u c
tion, a n d that the reduction c a u s e d a n e x
cessive o r b u r d e n s o m e w o r k l o a d a n d e n
d a n g e r e d the safety a n d health of the c r e w .
W o r k Schedule
All the a g r e e m e n t s r e q u i r e d that
m a n a g e m e n t a t t e m p t to schedule 85 p e r c e n t
of the e m p l o y e e s at a n y plant o n a n o r m a l
w o r k w e e k of 5 consecutive days. T h e e a r
lier a g r e e m e n t s p r o v i d e d for a s m u c h n o
tice of schedule c h a n g e s a s possible; the
1947 a g r e e m e n t specified that w e e k l y w o r k
schedules b e p o s t e d or m a d e k n o w n ,
in
a c c o r d a n c e with prevailing practices at the
respective plants, not later than F r i d a y of
e a c h w e e k . Thereafter, c h a n g e s w e r e p e r
m i t t e d only if the c a u s e w a s b e y o n d the
c o m p a n y ’s control o r b e c a u s e of the r e
q u i r e m e n t s of the business.
In s o m e of the f e w disputes o ver
w o r k schedules that req u i r e d arbitration
(table 2) it w a s c l a i m e d that the w o r k s c h e d
ule of the c o m p a n y w a s illegal in t e r m s of
the a g r e e m e n t .
In o n e of these c a s e s the
grievants r e q u e s t e d that the schedule be
c h a n g e d to p e r m i t t h e m w e e k e n d s off, p a r
ticularly S u n d a y s . A n o t h e r dispute involved
a r e quest for a m a n d a t o r y w o r k w e e k of
M o n d a y to M o n d a y , with the first 5 c o n
secutive d a y s a s w o r k d a y s a n d the next 2
consecutive d a y s as rest d a y s or p r e m i u m
d a y 8 if w o r k e d .
E s t a b l i s h m e n t of rotating
shifts w a s the c a u s e of o n e grievance.
B a r g a i n i n g Unit
All the a g r e e m e n t s defined the b a r
gaining unit a n d specified w h i c h e m p l o y e e s
w e r e to be included or e x c l u d e d f r o m it.
T h e y also p r o v i d e d that a n y questions c o n
cerning this clause could b e r e f e r r e d to
arbitration for final settlement.
O n l y 5 of the c a s e s studied involved
m e r e l y the question of w h e t h e r or not a job
w a s included in the bargaining unit or the
right of m a n a g e m e n t to r e m o v e a job f r o m
the bargaining unit (table 2).
In o n e c a s e
the u nion objected to the elimination of a
job in the bargaining unit a n d the creation
of a n e w position outside the bargaining
unit with allegedly identical duties.
In
another, the union objected to m a n a g e m e n t s
permitting s u p e r v i s o r y e m p l o y e e s , outside
the bargaining unit, to p e r f o r m p r o d uction
and maintenance w o r k which caused e m
ploy e e s in the bargaining unit a loss in
earnings.
T h e question of w h e t h e r a s u
p e r v i s o r y job w h i c h r e q u i r e d w o r k i n g wit h
tools w a s included in the bargaining unit
w a s the basis for o n e of the grievances.
Vacation
G r i e v a n c e s involving questions r e
lating to vacations w e r e r e f e r r e d to a r b i
tration infrequently.
In the 6 arbitrated
cases, n o single g r i e v a n c e w a s outstanding.
In 2 cases, the dispute c o n c e r n e d a n e m
p l o y e e ’s eligibility for a paid vacation. In
o n e of these, the e m p l o y e e c l a i m e d that his
a b s e n c e for virtually a n entire y e a r d u e to
illness should not d eprive h i m of a paid
vacation.
O n e grievance o c c u r r e d w h e n a
resigning e m p l o y e e m a i n t a i n e d that h e w a s
entitled to vacation p a y since h e h a d c o m
pleted the n e c e s s a r y w o r k a n d service r e
q u i r e m e n t s for it. In anot h e r instance, the
e m p l o y e e felt h e should h a v e r e c e i v e d 48
h o u r s ’ vacation p a y instead of 40 b e c a u s e
parts of the plant w e r e o n a 4 8 - h o u r s c h e d
ule during his vacation period.
PART
II —
DISCIPLINE A N D
Orderly
plant operation b a s e d on
p r o p e r behavior a n d w o r k p e r f o r m a n c e of the
e m p l o y e e s is essential to efficient production.
M a n a g e m e n t ' s duty to cond u c t s u c h a n o r derly
organization r equires authority to i m p o s e dis
cipline for a b r e a c h of g o o d b e h avior or w o r k
performance.
B e t hlehem's a g r e e m e n t s with the Steel
w o r k e r s r e s e r v e d to the c o m p a n y the right to
discipline a n d d i s c h a r g e its w o r k e r s for cause;
at the s a m e t i m e the a g r e e m e n t s s a f e g u a r d e d
certain rights of the e m p l o y e e s . Article X I I I 1
of the contracts r e a d as follows:
T h e m a n a g e m e n t of the plants a n d
w o r k s , . . . including the . . . s u s
pending, discharging or otherwise
disciplining of e m p l o y e e s , . . . a r e
the exclusive functions of the m a n
a g e m e n t ; provided, h o w e v e r , that in
the exercise of s u c h functions the
m a n a g e m e n t shall o b s e r v e the p r o
visions of this a g r e e m e n t a n d shall
not discriminate against a n y e m
ployee or applicant for e m p l o y m e n t
b e c a u s e of his m e m b e r s h i p in or
lawful activity o n behalf of the union.
E m p l o y e e Actions W h i c h
Justified Penalties
C a u s e s for disciplinary action, e x
cept for illegal strike activity w e r e not e n u
m e r a t e d in the a g r e e m e n t s .
A n analysis of
the arbitration decisions revealed a w i d e vari
ety of e m p l o y e e actions w h i c h h a v e b e e n u p
held as "just c a u s e " for discipline. F o r p u r
p o s e of analysis, the disciplined actions w e r e
classified into four categories: I m p r o p e r w o r k
p e r f o r m a n c e , i m p r o p e r job attitudes, i m
p r o p e r p e r s o n a l conduct, a n d union activity
in violation of a g r e e m e n t .
Improper
W o r k Performance
T h e right of the e m p l o y e r to expect
a fair day's w o r k in return for fair w a g e s g e n
erally carries with it the right to penalize
1 Contract clause numbers applicable to the
cases cited are those of the 1945 and 1947 con
tracts, covering most of the cases reviewed.
Numeration was slightly different in the 1942 con
tract but the clauses themselves were substantially
similar.
(id
DISCHARGE
w h e n it b e c o m e s certain that w o r k is in a d e
quately or i m p r o p e r l y p e r f o r m e d . Inability or
unwillingness to d o the job p r o p e r l y h a s b e e n
held b y the arbitrators in a n u m b e r of B e t h
l e h e m cases to be justification for penalties.
Disputes involving d e m o t i o n s for in
c o m p e t e n c e in the technical p e r f o r m a n c e of
the job w e r e f e w a m o n g those arbitrated. S e v
eral c a s e s of discipline of w o r k e r s in m o r e
responsible jobs w e r e b a s e d o n p o o r j u d g m e n t
or lack of leadership qualities of the i n c u m
bents.
Intentionally limiting production w a s
another c a u s e for penalty.
M o s t of the c a s e s
relating to w o r k p e r f o r m a n c e w e r e those in
w h i c h negligence or lack of " due c a r e " o n the
part of the w o r k e r w e r e alleged to h a v e b e e n
responsible for d a m a g e .
Improper
J o b Attitudes
Seve r a l of the B e t h l e h e m arbitration
ca s e s involved e m p l o y e e actions w h i c h m a y
be g r o u p e d as " i m p r o p e r attitudes t o w a r d the
job."
Irresponsibility, evi d e n c e d in h o r s e
play w h i c h e n d a n g e r e d fellow w o r k m e n , w a s
c a u s e for discharge.
Refusal to p e r f o r m a
re a s o n a b l e a s s i g n m e n t a n d refusal to w o r k
o v e r t i m e in a n e m e r g e n c y w e r e other r e a s o n s
for discipline.
A relatively large n u m b e r
of c a s e s involved actions classed as "i n s u b
ordination, " w h i c h r a n g e d f r o m refusing to
o b e y specific o r d e r s to ar g u i n g with s u p e r
visors. Irregular attendance without justifi
able explanation h a s b e e n a c c e p t e d as a valid
r e a s o n for discipline. Falsifying r e c o r d s r e
lating to the job also h a s b e e n held to justify
disciplinary m e a s u r e s .
Improper Personal Conduct
C o m p a n y authority o v e r p e r s o n a l con
duct is generally limited to e m p l o y e e b e h a v i o r
during w o r k i n g h o u r s a n d to those actions
w h i c h affect general m o r a l e a n d discipline.
Obviously, fighting o n c o m p a n y p r o p e r t y c a n
not be tolerated, a n d the participants m a y be
punished. A b u s i v e lan g u a g e w h i c h m a y affect
plant discipline h a s also b e e n c o n s i d e r e d b y
arbitrators as c a u s e for discipline.
Deliberate a n d r e p e a t e d infractions
of the rules of g o o d co n d u c t h a v e b e e n held
b y the B e t h l e h e m arbitrators to w a r r a n t p u n
ishment.
T h e a b u s e of f r e e d o m of speech,
for instance, as in the c a s e of a n individual
who made
h i m s e l f obnoxious to his fellow
workers,
was
considered
justification for
penalty.
1 2
U n i o n Activity in Violation of A g r e e m e n t
B e t h l e h e m ’s a g r e e m e n t s with, the union
provided: " N o e m p l o y e e m a y e n g a g e in union
activity o n the p r o p e r t y of the c o m p a n y in
a n y m a n n e r w h i c h shall interfere with p r o
duction or e n g a g e in a n y union activity on
c o m p a n y t i m e . " In several B e t h l e h e m c a s e s
involving s u c h actions the right of the c o m
p a n y to discipline w a s upheld.
W h e n e m p l o y e e s e n g a g e d in illegal
strike activity, the contracts g a v e the c o m p a n y
the right to discharge.
Arbitrators upheld
this c o m p a n y right in a n u m b e r of cases.
Rights a n d Responsibilities
of the Parties
Present-day employer-employee re
lationships a r e b a s e d o n a pattern of rights
a n d responsibilities b e y o n d those requ i r e d b y
the law. Thus, in u n i o n - m a n a g e m e n t situations,
m a n a g e m e n t ’s right to discipline is typically
restricted to actions taken for "just c a u s e "
a n d m a y not be ex e r c i s e d in a n arbitrary m a n
ner.
Article X I of the B e t h l e h e m contracts
p r o v i d e d a m e a n s , t h rough impartial arbitra
tion, for e m p l o y e e s to appeal w h a t they c o n
sidered unjust or di s c r i m i n a t o r y disciplinary
t r e a t m e n t after other steps in the grievance
p r o c e d u r e h a d b e e n exhausted.
Management Prerogatives and
Standards of penalty i m position.— T h e
opinion of the arbitrators in the B e t h l e h e m
c a s e s o n m a n a g e m e n t ’s right to discipline has
b e e n clearly e x p r e s s e d . A s on e arbitrator put
it, " . . .
it is clear that m a n a g e m e n t ordi
narily has the exclusive right to decide o n the
disciplining of e m p l o y e e s .
T h o u g h its d e
cisions m a y b e challenged in arbitration, the
b u r d e n is o n the union to p r o v e that the dis
cipline i m p o s e d w a s arbitrary, u n r e asonable,
d i s c r i m i n a t o r y or a contract violation. "
T h e s cope a n d limitations of m a n a g e
m e n t ’s rights in i m p o s i n g penalties w a s c o m
m e n t e d on b y the arbitrator in a nother case.
In his w o r d s :
A n elaborate a n d apparently fair a n d
successful p r o c e d u r e has b e e n d e v e l o p e d
to c o v e r discharges in o r d e r to protect
the rights not only of the m a n but also
the c o m p a n y .
B y this p r o c e d u r e a chain
of evidence is established prior to dis
charge.
In this w a y the e m p l o y e e is
w a r n e d reg a r d i n g the attitude of m a n a g e
m e n t t o w a r d h i m . Since a n y one of these
w a r n i n g s c a n b e challenged b y the e m
ployee, he m a y t h r o u g h this p r o c e d u r e
protect his rights. Similarly the rights
of m a n a g e m e n t a r e fully protected since
failure to successfully challenge a dis
cipline is v e r y strong p r e s u m p t i o n of
guilt.
T h e s e observations a r e not intended
to i m p l y that m a n a g e m e n t m a y not h a v e
the right to d e m o t e , e v e n without prior
w a r n i n g , if the situation fully justifies
it.
In s u c h a case, it is believed that
the c o m p a n y m u s t s h o w that the d e g r e e
of p e r s o n a l responsibility w o u l d b e quite
high or that s o m e physical or m e n t a l
i m p a r i m e n t h a d o c c u r r e d w h i c h disqual
ified the m a n thereafter.
In the exercise of its authority to
discipline e m p l o y e e s , m a n a g e m e n t m u s t o b
ser v e certain proprieties. Arbitrators h a v e
held, for e x a m p l e , that discipline m a y not be
i m p o s e d w h e r e the e m p l o y e e h a d n o w a r n i n g
of, or could not b e expected to h a v e k n o w l
e d g e of, the c o n s e q u e n c e s of his w r o n g f u l
action.
In on e c a s e the grievant w a s dis
c h a r g e d for the repeated infraction of the
"no s m o k i n g " rule in the plant.
T h e union
a r g u e d that the rule w a s frequently violated
a n d fire h a z a r d s w e r e not serious. T h e facts
of the c a s e indicated that the d a n g e r w a s real.
T h e r e w a s n o question of k n o w l e d g e of the
rule; signs w e r e c o n s picuously posted, a n d
penalties for infraction w e r e posted on the
bulletin b o a r d — s u s p e n s i o n for the first t w o
violations; a n d dis c h a r g e for the third.
A
large n u m b e r of m e n h a d rec e i v e d penalties
for first a n d s e c o n d offenses but the grievant
w a s the first e m p l o y e e to be discharged.
Actually, the grievant h a d b e e n caught in his
fifth violation, having b e e n penalized for the
third a n d fourth offenses without being dis
charged. In upholding the d i s c h a r g e the a r b i
trator stated, " T h e rules h a v e b e e n f o r m a l
ized a n d k n o w n for years; they established
the s u c c e s s i o n of penalties for s u c c essive
violations; M r . H certainly k n e w w h a t m i g h t
b e involved for h i m since his n a r r o w e s c a p e
in 1945. I see, accordingly, n o basis for in
tervention b e t w e e n h i m a n d the k n o w n c o n s e
q u e n c e s of his o w n b r e a c h e s of the rules . . . "
L a x e n f o r c e m e n t of rules h a d a b e a r
ing o n the penalty w h e r e violations w e r e f r e
quent a n d unpunished.
In o n e c a s e a n e m
ployee left the plant, without p e r m i s s i o n , to
e n g a g e in union activity in a n eighboring w a r e
house,
Since the prohibition against leaving
the plant without p e r m i s s i o n h a d b e e n e n
f o rced only casually the arbitrator ruled that
13
a verbal w a r n i n g w o u l d b e m o r e appropriate
than suspension.
Discipline for the i m p r o p e r
union activity w a s held to b e appropriate.
R ules n e e d not be f o r m a l l y stated
a n d posted if the e m p l o y e e is expected to
k n o w t h e m b e c a u s e of c u s t o m a r y practice.
In o n e of the c a s e s reviewed, a n e m p l o y e e
refused a n a s s i g n m e n t w h i c h h e c o n s i d e r e d
unjust a n d a s k e d his f o r e m a n for his t i m e
card, indicating he w a n t e d to go h o m e . T h e
f o r e m a n tried to dissuade h i m but, failing
to d o so, signed the t i m e c a r d a n d the e m
ployee left the shop.
H e w a s s u s p e n d e d for
2 days w h e n h e r e p orted for w o r k the next
sc h e d u l e d w o r k d a y .
In his appeal, the e m
ployee indicated that he co n s i d e r e d the fact
that the f o r e m a n signed his c a r d as p e r m i s
sion to go h o m e .
A t no t i m e did the f o r e
m a n w a r n h i m of penalties.
B u t the a r b i
trator did not consider that explicit w a r n i n g
of penalty for walk i n g off the job w a s n e c e s
sary. "Certainly c u s t o m a r y practice in this
m a t t e r . . . establishes for e v e r y e m p l o y e e
at least a f o r e - k n o w l e d g e that h e d o e s not
return to w o r k f r o m s u c h a walk-off in g o o d
standing. n
A t the s a m e t i m e it w a s r e c o g n i z e d
that it m a y be difficult for a n e m p l o y e e to
h a v e k n o w l e d g e of a n alleged w r o n g - d o i n g if
p r e vious practice h a d b e e n condoned, unless
the e m p l o y e e w a s p r o p e r l y notified.
This
principle w a s r e c o g n i z e d in a c a s e w h e r e a n
e m p l o y e e w h o w a s not a w a r e of a n e w ruling
w a s not penalized for the a c c u m u l a t i o n of
" b a n k s " (incentive w o r k not t u rned in^.
M a n a g e m e n t ^ right to discipline w a s
further restricted, on the basis of decisions
in the c a s e s u n d e r review, b y the r e q u i r e m e n t
that the penalty i m p o s e d m u s t be fair.
The
penalty not only m u s t b e a r a r e a s onable r e
lationship to the offense, it w a s held, but
m u s t be i m p o s e d in like m a n n e r u p o n all e m
ployees without favoritism or discrimination.
Discrimination b e t w e e n w o r k e r s w a s
the basis for the mitigation of penalty in the
c ase of 2 e m p l o y e e s w h o h a d 42 m i n u t e s p a y
ded u c t e d for quitting early a n d w e r e s u s
p e n d e d for 3 d a y s for being a w a y f r o m the
w o r k a r e a without authorization, both p e n
alties applying to the s a m e p e riod of time.
A t the s a m e t i m e several other e m p l o y e e s
also h a d 42 m i n u t e s p a y d e d u c t e d for stop
ping w o r k before official quitting time. T h e
arbitrator found that the t i m e the penalized
e m p l o y e e s w e r e a w a y f r o m the job w a s rel
atively short a n d ordinarily w o u l d not b e n o
ticed.
" T h e difference b e t w e e n the offense of
Digitized
S a nfor
d FRASER
S, w h o d a w d l e d five or ten m i n u t e s
a w a y f r o m the w o r k area, a n d the other e m
ployees w h o w e r e penalized b y a 4 2 - m i n u t e
deduction for dawd l i n g o n the job, is not great
e n o u g h to justify the rather stringent extra
penalty. "
A n o t h e r a g g r i e v e d e m p l o y e e , S, w a s
s u s p e n d e d for 6 d a y s for falsifying his daily
t i m e s h e e t for S e p t e m b e r 12 b y reporting 24
center sills p u n c h e d , w h i c h w e r e not p u n c h e d
o n that day, although he w a s w a r n e d o n S e p
t e m b e r 14 that this practice w a s a violation
of the rules.
H e w a s s u s p e n d e d for the false
report of S e p t e m b e r 12 w h e n h e failed to r e
port o n his t i m e s h e e t for S e p t e m b e r 18, six
center sills w h i c h he p u n c h e d that day.
The
penalty against S*s helper for his false report
of S e p t e m b e r 12 w a s s u s p e n d e d b e c a u s e o n
that d a y he h a d not b e e n notified that the
practice w a s a violation of the rules.
The
arbitrator d e c l a r e d that at that t i m e S stood
in the s a m e position as the H e l p e r a n d should
therefore h a v e b e e n given the s a m e treat
ment.
E v e n a n e m p l o y e e *s past
record
while i m p o r t a n t in judging the severity of the
penalty, doe s not justify different t r e a t m e n t
in the plant than w o u l d b e given other e m
ployees.
A n e m p l o y e e , K , w h o s e previous
r e c o r d w a s not good, w a s penalized b y being
sent h o m e for t h r o w i n g a cigarette on the
floor a n d then refusing to pick it up. W h e n
K reported to w o r k the next m o r n i n g , he w a s
called into the s u p e r i n t e n d e n t s office a n d
a s k e d to p r o m i s e that if again caught t h r o w
ing cigarettes o n the floor he w o u l d pick t h e m
u p if o r d e r e d to d o so.
K said he w o u l d h a v e
to think it o v e r a n d w a s again sent h o m e .
T h e arbitrator stated that K w a s justified in
feeling that he h a d b e e n singled out for s p e
cial treatment. " H e p r e s u m a b l y paid the c o n
s e q u e n c e of his past improprieties.
H e is
entitled to the s a m e t r e a t m e n t henceforth as
all other e m p l o y e e s , n o m o r e ,
n o less."
Standards of c o m p a n y a d m i n i s t r a
tion.— T h e right o? m a n a g e m e n t to set the
standards for administration of the business
w a s e x p r e s s l y stated in Article XIII of the
contracts (p. 11 ) a n d w a s reiterated b y
the
arbitrators. M a n a g e m e n t set safety rules for
the protection of w o r k e r s a n d p r o p e r t y a n d
established other rules pertaining to p r o d u c
tion.
T h e s e w e r e s e l d o m questioned b y e m
ployees, unless they w e r e involved in infrac
tions. C o m p a n y rules a n d policies affecting
e m p l o y e e s m u s t b e m a d e k n o w n to the e m
ployees, as m e n t i o n e d earlier.
Safety rules
w e r e generally posted a n d n o question of
k n o w l e d g e of the rules w a s ordinarily raised.
14
M a n a g e m e n t s right to schedule o v e r
t i m e to m e e t a n e m e r g e n c y s n o w situation
w a s a c c e p t e d b y the arbitrator without q u e s
tion. Disciplinary action against a n e m p l o y e e
w h o refused to accept o v e r t i m e in the s n o w
e m e r g e n c y w a s upheld.
In another case,
w h e r e a n e m p l o y e e refused to load shells,
w h e n his regular job w a s tied u p b e c a u s e of
a b r e a k d o w n , the arbitrator stated that the
c o m p a n y h a d the right to ass i g n w o r k e r s to
other tasks.
W h e r e the su p e r v i s o r tacitly a c
cepted w o r k i n g a r r a n g e m e n t s a m o n g the m e n ,
other than those f o r m a l l y set b y m a n a g e m e n t ,
he m u s t m a k e p r o p e r all o w a n c e for s u c h t e a m
c o d e s in disciplinary actions, it w a s held.
In one case, o n e of the m e n w a s operating a
" c h a r g e car, " although his job w a s a differ
ent one.
This w a s a n infraction of the safety
rules, but o n e w h i c h h a d b e e n tolerated in
the interest of practical w o r k i n g a r r a n g e
m e n t s . A further violation of the rules w a s
c a u s e d b y permitting the c h a r g e c a r to m o v e
unattended.
T h e arbitrator c o n s i d e r e d that
the s e c o n d practice d e s e r v e d a penalty but
since the c o m p a n y h a d tolerated the first in
fraction of rules, the penalty i m p o s e d w a s
c o n s i d e r e d too severe.
Finally, c o m p a n y o r d e r s h a d to be
r e a s o n a b l e if discipline for violation w a s to be
upheld.
A n arbitrator held that a s u p e r i n
t e n d e n t ^ action in canceling a n e m p l o y e e ^
vacation 2 d a y s before it b e c a m e effective
w a s u n r e a s o n a b l e w h e n the request h a d b e e n
m a d e s everal m o n t h s previously.
Suspension
of 2 d a y s w h e n the e m p l o y e e did not s h o w up
for w o r k at the date of his s c h e d u l e d v a c a
tion w a s reversed.
A s s i g n m e n t to appropriate j o b s .— T h e
c o m p a n y fs right to assign w o r k e r s to a p p r o
priate jobs, i m plied in Article XIII of the
a g r e e m e n t s , m u s t be exerc i s e d in a fair a n d
nondiscriminatory m a n n e r .
Seve r a l of the
B e t h l e h e m arbitration c a s e s indicated s u c h
limitation o n this prerogative of m a n a g e m e n t .
In the c a s e of a n e m p l o y e e w h o r e
fused a n a s s i g n m e n t to load shells, w h i c h w a s
not his regular job, the arbitrator stated that
the right to a s s i g n w o r k e r s is "limited o n the
o n e h a n d b y the factor that the c o m p a n y m a y
not, u n d e r color of it, violate a n y provision of
the A g r e e m e n t , nor, o n the other hand, u s e it
for d i s c r i m i n a t o r y or other unfair p u r p o s e . "
In the c a s e of five c r a n e m e n w h o
w e r e penalized for refusing to " m a k e a lift, "
the arbitrator felt that the c o m p a n y w a s u n
fair.
T h e incident a r o s e f r o m the fact that
the o perator o n a certain c r a n e o n the "3to-11" shift h a d b e e n taken off the job a n d
another e m p l o y e e o n that shift h a d refused
to m a k e the lift.
E a c h of the c r a n e o p e r a
tors o n the " l l -to-7" shift also refused to
m a k e the lift, c l a i m i n g that his i m m e d i a t e
job should take p r e c e d e n c e .
E a c h m a n , as
a c o n s e q u e n c e , w a s sent h o m e .
After c o n
ferring with the s h o p steward, h o w e v e r , e a c h
o perator offered to d o the job.
In the m e a n
t i m e the lift h a d b e e n r e m o v e d b y hand.
The
arbitrator felt that m a n a g e m e n t h a d created
a n issue out of proportion to the seri o u s n e s s
of the situation.
f,W i s e m a n a g e m e n t w o u l d
n e v e r h a v e m a d e a n issue o v e r a load so light
that t w o or three apprentices w e r e able to
m o v e it b y hand, particularly in v i e w of the
fact that the C r a n e m e n in question w e r e a p
parently w o r k i n g o n a n e m e r g e n c y job.
To
s u s p e n d all of a c r e w for the m a j o r part of
a turn b e c a u s e e a c h r efused to m o v e a single
lift of s u c h insignificance certainly gives the
a p p e a r a n c e that m a n a g e m e n t w a s going out of
its w a y looking for trouble. " T h e penalty w a s
cut in half.
In a s o m e w h a t similar case, a n e m
ployee refused to assist a n Electrical R e p a i r
m a n fixing the m o t o r o n the e m p l o y e e ls e d g e
planer.
H e w a s penalized 1 day*s w o r k for
going h o m e after refusing the a s s i g n m e n t .
T h e e m p l o y e e c l a i m e d that he w a s afraid of
electricity a n d thought his job w a s going to be
c hanged.
T h e f o r e m a n h a d m a d e n o effort
to d e t e r m i n e the r e a s o n for the e m p l o y e e ^
refusal to p e r f o r m w h a t h e (the f o r e m a n ) c o n
sidered a re a s o n a b l e a s s i g n m e n t . In the a r b i
t r a t o r ^ view, both parties w e r e at fault; he
held that the f o r e m a n should h a v e m a d e a n
effort to d e t e r m i n e w h y the a s s i g n m e n t w a s
refused.
E m p l o y e e s 1 Rights a n d Responsibilities
A n e m p l o y e e ^ rights are, of course,
the c o n v e r s e of the c o m p a n y fs obligations.
H e h a s a right to b e f o r e w a r n e d of c o m p a n y
standards a n d penalties.
H e h a s a right to
b e treated like other e m p l o y e e s , a n d to b e
treated fairly.
W h i l e the contracts did not
specifically m e n t i o n fair a n d impartial treat
m e n t , the arbitrators* decisions h a v e b e e n
b a s e d o n generally r e c o g n i z e d principles of
equity.
F o r instance, in on e c a s e the grievant c l a i m e d that the w a y h e h a d b e e n disci
plined constituted double penalty.
There was
n o question that a double penalty could not be
imposed.
T h e question w a s w h e t h e r a double
penalty h a d actually b e e n levied.
T h e facts
w e r e established as follows:
15
T w o e m p l o y e e s r e c eived a 1-day dis
ciplinary s u s p e n s i o n for infraction of the
c o m p a n y rules, a n d w e r e told not to report
for w o r k the following d a y w h i c h w a s T h u r s
day.
It rained that day, a n d all e m p l o y e e s
in the s h o p w e r e sent h o m e w h e n they r e
p o rted for w o r k .
O n the following day, all
e m p l o y e e s , including the t w o grievants, r e
po r t e d to w o r k a n d w o r k e d all day.
During
the d a y the f o r e m a n i n f o r m e d all the e m
ployees except the t w o grievants that they
w o u l d b e p e r m i t t e d to w o r k S a t u r d a y to m a k e
u p the d a y lost b e c a u s e of rain o n T h u r s d a y .
political v i e w s u p o n the e m p l o y e e s in the d e
p a r t m e n t to the point w h e r e a highly explosive
and dangerous
condition prevailed t h e r e . "
T h e arbitrator*s "only interest a n d c o n c e r n
h e re," h e said, "is as to the effect w h i c h
the vocal espousal a n d u r g e n c e of these opin
ions a n d beliefs m a y h a v e h a d u p o n the e m
ployees w o r k i n g with M , their ability to c o n
tinue to w o r k safely, undisturbed a n d with full
p e a c e of m i n d , a n d for M a n a g e m e n t * s part,
its ability to continue to c a r r y out its o b
ligations to m a i n t a i n safe a n d p r o p e r w o r k i n g
conditions a n d efficient operations. . . .
T h e union c o n t e n d e d that since the
e m p l o y e e s h a d a l r e a d y b e e n penalized b y h a v
ing to stay a w a y o n T h u r s d a y , denial of w o r k
o n S a t u r d a y constituted a double penalty. T h e
c o m p a n y a s s e r t e d that the grievants did not,
in fact, s e r v e the 1 - d a y s u s p e n s i o n w h i c h
m a n a g e m e n t h a d intended for their infraction.
T h e arbitrator a g r e e d with the c o m p a n y . " T o
s a y that this particular T h u r s d a y , as s u c h
a n d irrespective of w h e t h e r there be w o r k
o n that day, w a s the penalty d a y is far too
strained a n d technical a n a n s w e r .
T h e true
spirit, p u r p o s e a n d und e r s t a n d i n g of the p a r
ties w a s rather that the grievants b e denied
1 d a y fs w o r k , T h u r s d a y , if there b e w o r k
o n that day, or if there b e none, then another
day.
T h a t w a s implied, if not expressed,
in the f o r e m a n ^ instructions to the grievants
that they not report for w o r k o n that T h u r s
day.
O n e day*s loss of w o r k w a s the in
ten d e d penalty.
A n d until the grievants did
s e r v e that penalty b y incurring a 1 - d a y loss
of w o r k , it cannot, in truth, b e said that
they satisfied that penalty. "
"If his c o u r s e of conduct w a s not
a calculated pattern of action intentionally
a i m e d to disrupt the peace, h a r m o n y a n d effi
ciency in the d e p a r t m e n t , it is, to s a y the
least, a manifestation of a c o m p l e t e a n d utter
d i s r e g a r d of the rights of his c o - w o r k e r s
a n d of his e m p l o y e r . . . .
It is s h e e r p r e
s u m p t u o u s n e s s o n M * s part to s e e k shelter
in his constitutional right of free s p e e c h . "
In g eneral the discussion in the p r e
vious section w h i c h relates to m a n a g e m e n t
responsibilities in e m p l o y e e discipline is also
applicable to e m p l o y e e s * rights in the matter.
In addition, the subject of f r e e d o m of s p e e c h
as a n e m p l o y e e right d e s e r v e s m e n t i o n . W h e n
appropriately exercised, it w a s held, f r e e d o m
of s p e e c h m a y not b e restricted b y the e m
ployer.
In o n e c a s e a n e m p l o y e e w a s p e n a l
ized for saying to the superintendent that he
w a s not r e q uired to w o r k overt i m e .
The
arbitrator r e v e r s e d the c o m p a n y penalty s a y
ing, " T h e e x p r e s s i o n of his v i e w s in the
superintendent*s office, n o m a t t e r h o w e r
r o n e o u s those v i e w s m a y h a v e been, c a n
h a r d l y b e c o n s i d e r e d a punishable offense. "
T h a t liberty of s p e e c h in the plant
m a y not b e abused, h o w e v e r , h a s b e e n e m
phatically held b y arbitrators in several other
cases.
In o n e case, a n e m p l o y e e w a s dis
c h a r g e d b y m a k i n g h i m s e l f obnoxious to his
fellow w o r k e r s b y persistently p r e s s i n g "antireligious,
anti-clerical a n d his e c o n o m i c a n d
Similarly, n o insubordination, inter
fere n c e with the cond u c t of the business, or
s l o w d o w n of p r o d uction m a y b e e n c o u r a g e d b y
e m p l o y e e s , a n d s u c h action cannot b e justified
u n d e r c o v e r of f r e e d o m of speech.
T h e w o r k e r * s responsibility with r e
spect to discipline is, of course, to avoid
a n y action w h i c h m a y b e the subject for dis
cipline.
H e m u s t o b s e r v e the r e c o g n i z e d
rules of plant b e h a v i o r a n d m u s t p e r f o r m
his job with d u e c a r e a n d appropriate c o m
petence.
T h e e m p l o y e e s obligation to p e r f o r m
his job p r o p e r l y w a s clearly illustrated in the
c a s e w h e r e a n e m p l o y e e w a s c h a r g e d with
intentional s l o w a n d p o o r w o r k . Hi s p e r f o r m
a n c e o n the d a y in question w a s far b e l o w
that o n p r e vious days.
H e had been penal
ized for insubordination the p r e v i o u s day,
a n d the c o m p a n y alleged that h e w a s inten
tionally doing p o o r w o r k b e c a u s e of ill-will.
T h e arbitrator rejected the e m p l o y e e * s e x
c uses for the deterioration in his w o r k a n d
could find n o valid r e a s o n for it.
In another case, a n e m p l o y e e , w h e n
o b s e r v e d quitting early, u s e d abus i v e lan
g u a g e w h e n i n f o r m e d of the t i m e rules.
He
w a s later found reading c o m i c b o o k s a n d not
attending his job a n d after that w a s found
sleeping o n his job.
H e h a d prev i o u s l y b e e n
r e p r i m a n d e d for quitting early, a n d n o w w a s
s u s p e n d e d for 3 days. In the opinion of the
arbitrator, the e m p l o y e e "definitely s h o w e d a
predisposition to d i s r e g a r d the rule a n d a n
intention of not c o m p l y i n g with it.
H i s dis
ciplinary s u s p e n s i o n cannot, therefore, b e
disturbed. "
16
T h e u s e of a b usive lan g u a g e in g e n
eral w a s i m p r o p e r u s e of p e r s o n a l f r e e d o m
a n d justified a penalty, the arbitrators h a v e
held.
In the c a s e of a n e m p l o y e e w h o w a s
s u s p e n d e d f r o m w o r k for 1 w e e k for the u s e
of abusive l a n g u a g e in a n a r g u m e n t with the
f o r e m a n , the arbitrator stated, " E x c e p t w h e n
p r o v o c a t i o n is so s e v e r e as to justify the
w a i v i n g of individual responsibility, the u s e
of abusive l a n guage of s u c h a p e r s o n a l nature
b y a n y one, as w a s a d m i t t e d in this case, is
difficult to excuse.
A n y other conclusion
w o u l d lead only to a b r e a k d o w n in s h o p dis
cipline a n d ignoring the g r ievance p r o c e d u r e . "
It w a s a basic r e q u i r e m e n t that a n
e m p l o y e e should u s e the griev a n c e p r o c e d u r e
of the contract to protest w h e n h e feels that
h e has b e e n subjected to unjust discipline.
H e m u s t not take action in his o w n w a y , s u c h
as w a l k i n g off the job. A n e m p l o y e e w h o w a s
a chronic a b s e n t e e w a s d e m o t e d a n d then
stayed a w a y f r o m his job for 2 w e e k s .
When
h e r e t u r n e d he pl e a d e d for his old job a n d
w a s s h o w n leniency b y being reinstated. S u b
sequently, he rever t e d to his old practice of
a b s e n t e e i s m . T h e u m p i r e could find n o legit
i m a t e r e a s o n for the e m p l o y e e ^ being a w a y
f r o m his job so frequently.
T h e a b s e n c e of
2 w e e k s in protest against his d e m o t i o n w a s
c o n s i d e r e d b y the arbitrator to b e c o m p l e t e l y
indefensible.
"It w a s a m a t t e r strictly of
his o w n doing.
If C felt his d e m o t i o n w a s
unjustified, his p r o p e r c o u r s e of action w a s
to file a g r ievance a n d not leave his job.
T h e p u r p o s e of the g r ievance p r o c e d u r e of
the A g r e e m e n t w a s to avoid the v e r y thing
that C did h e r e . "
U n i o n Responsibilities
U n i o n responsibilities with r e g a r d to
m a t t e r s of discipline a r e generally those w h i c h
relate to u n i o n activity in the plant or strike
activity in violation of the contract.
Union
activity m u s t not interfere with production.
A s c o m p a n y e m p l o y e e s , union officers w e r e
r e q u i r e d not only to o b s e r v e contract p r o
visions relating to prohibition of strikes but
to take affirmative action to avoid s u c h stop
pag e s .
U n i o n officials guilty of e n c o u r a g i n g
illegal strikes m a y also b e subject to union
discipline, but this w a s
a n internal union
m a t t e r outside of the authority or jurisdiction
of the arbitrator.
Arbitrators have, o n a n u m b e r of
occasions, pointed out the responsibility of the
u n i o n to s e e that the gri e v a n c e p r o c e d u r e is
u s e d a n d not the illegal strike.
A "sym
pathetic" w a l k o u t w a s e n g a g e d in b y the e m
ployees of a d e p a r t m e n t o v e r w h a t they c o n
Digitized forsidered
FRASER to b e a n unfair disciplinary action
involving a fellow w o r k e r .
T h e arbitrator^
c o m m e n t w a s to the effect that " s u c h action
c a n only s e r v e to tear d o w n the v e r y g r i e v
a n c e m a c h i n e r y of the A g r e e m e n t .
If e m
ployees a r e to resort to self-help or p r e s s u r e
t h r o u g h S y m p a t h y 1 walkouts, w h a t p u r p o s e
a n d r e spect c a n there b e h a d for the g riev
a n c e m a c h i n e r y including arbitration, all of
w h i c h the c o m p a n y a n d u nion carefully w o r k e d
out in the A g r e e m e n t ?
S o u n d labor relations
u n d e r the A g r e e m e n t requires e m p l o y e e selfcontrol a n d their full a d h e r e n c e to the p e a c e
ful a n d o r d e r l y disposition of their g r i evance
t h r o u g h the p r o c e s s i n g of it u n d e r the g r i e v
a n c e steps of the A g r e e m e n t . "
Article X V I I of the a g r e e m e n t s b e
t w e e n B e t h l e h e m a n d the u n i o n p r o v i d e d that
the c o m p a n y m a y s u s p e n d a n d later d i s c h a r g e
a n y e m p l o y e e w h o shall
(a)
e n g a g e in or in a n y w a y e n c o u r
a g e or sanction a n y strike or
other action w h i c h shall inter
rupt or interfere with w o r k or
p r o d uction at a n y of the Plants
or W o r k s or
(b)
p r e v e n t or a t t e m p t to p r e v e n t
the a c c e s s of E m p l o y e e s to a n y
of the Plants or W o r k s .
M o s t of the c a s e s of discipline for
union activity involved u nion officials.
These
e m p l o y e e s , the c o m p a n y h a s apparently felt,
a n d the arbitrators
h a v e e x p r e s s l y stated,
h a v e a duty to take positive action w h e r e the
likelihood of a w o r k stoppage has developed.
W h i l e participation in a n illegal w o r k stoppage
b y the r a n k a n d file u nion m e m b e r w a s g e n
erally o v e r l o o k e d b y the c o m p a n y , the uni o n
officials taking a leading part h a v e frequently
b e e n subject to discipline.
In a n early c a s e involving the dis
c h a r g e of G, a n Assistant S h o p S t e w a r d , the
arbitrator c o n c l u d e d o n the basis of his evaluation of the evidence that G h a d e n c o u r a g e d
a n d sanctioned a w o r k stoppage in violation
of the a g r e e m e n t , although it w a s not e s t a b
lished that h e h a d initiated or e n g a g e d in it.
T h e u n i o n a r g u e d that this provision of the
a g r e e m e n t m u s t b e r e a d in conjunction with
o n e w h i c h prohibited the m a n a g e m e n t f r o m
exercising its disciplinary p o w e r s in s u c h a
m a n n e r as to discriminate against a n y e m
ployee b e c a u s e of his lawful activity o n b e
half of the union.
T o this the arbitrator r e
plied that a w o r k stoppage w a s not a lawful
activity within the m e a n i n g of the contract.
17
T h e arbitrator elaborated:
T h e union h a s p l e d g e d itself in this
contract to refrain f r o m strikes a n d
w o r k stoppages. This pledge goe s to
the heart of the contract.
U p o n its
o b s e r v a n c e the future stability of r e
lations b e t w e e n the c o m p a n y a n d u n
ion d e p e n d s . . • V i e w e d in this
light, it is clear that the contractual
pl e d g e is m o r e than a m e r e negative
a g r e e m e n t to k e e p •hands off1 w h e n
a stoppage threatens.
It is a n af
firmative obligation, binding u p o n all
union officers a n d representatives,
to do their u t m o s t to p r e v e n t strikes
a n d stoppages a n d put a s p e e d y end
to t h e m w h e n they occur. . . .
G
w a s not d i s c h a r g e d b e c a u s e as a u n
ion representative h e c arried out his
duty in presenting a g r i evance to the
m a n a g e m e n t ; he w a s d i s c h a r g e d b e
c a u s e h e failed to c a r r y out his duty
a n d b y his failure violated the a g r e e
ment.
In another case, T, a grievance c o m
m i t t e e m a n , w a s d i s c h a r g e d for violating A r
ticle X V U of the a g r e e m e n t in that "he e n
g a g e d in, e n c o u r a g e d a n d sanctioned" a w o r k
stoppage.
T h e stoppage involved m o r e than
half the w o r k force of the d e p a r t m e n t .
W h e n T a r r i v e d at his m a c h i n e o n
the d a y of the walkout, h e found a n u m b e r of
the m e n discussing certain extra or u n s c h e d
uled size c h a n g e s w h i c h w e r e to b e m a d e .
With o u t stopping to c h a n g e into his w o r k i n g
clothes he p r o c e e d e d to try to obtain a n " e x
planation" f r o m various s u p e r v i s o r y officials
for these " e x c e s s i v e " size changes.
T and
the c h a i r m a n of the griev a n c e c o m m i t t e e c o n
f e r r e d with the superintendent, after w h i c h T
w e n t b a c k to his w o r k a r e a w h e r e the other
employees w e r e
congregated.
After s o m e
discussion in the area, the w i r e d r a w i n g m a
chines b e g a n to shut d o w n .
T h e f o r e m a n and
later the superintendent a s k e d the griev a n c e
c o m m i t t e e c h a i r m a n to try to get the m e n to
return to w o r k , w h i c h h e did both times.
S o m e e m p l o y e e s returned, but m o s t of t h e m
did not, a n d the w a l k o u t continued.
T h e arbitrator found that the stop
p a g e w a s definitely attributable to T b y his
action in setting the s p a r k for the w a l k o u t a n d
b y his seeking, not a n "explanation," but a
c h a n g e in operations.
". . . his action c o n
stitutes a bold, o p e n defiance of the grievance
a d j u s t m e n t p r o c e d u r e of the A g r e e m e n t a n d a
resort to force a n d self-help in violation of
the no-strike provisions of Article XVII.
It
then for
b eFRASER
c o m e s m a n d a t o r y u p o n the u m p i r e to
Digitized
http://fraser.stlouisfed.org/
2 9 9 8 2 3 0 - 54 - 4
Federal Reserve Bank of St. Louis
sustain the discharge. " T h e fact that the e m
ployee w a s a griev a n c e c o m m i t t e e m e m b e r
g a v e h i m n o liberty to d o w h a t h e did.
"An
e m p l o y e e is not relieved of his duty a n d obli
gation to live u p to the A g r e e m e n t b y his a p
p o i n t m e n t to a union office • • • O n the c o n
trary, he a s s u m e s a n e v e n greater r e s p o n s i
bility b y his a c c e p t a n c e of a u n i o n office, a
responsibility that h e exert e v e r y effort to
s e c u r e e m p l o y e e a d h e r e n c e to the g r ievance
p r o c e d u r e of the A g r e e m e n t for the disposi
tion of a g r ievance a n d not to fo m e n t , incite,
a n d induce a strike or w o r k s toppage as did T
in the instant case. "
In another c a s e a w o r k stoppage o c
c u r r e d after t w o e m p l o y e e s w e r e sent h o m e
for allegedly slowing d o w n their w i r e d r a w i n g
machines.
T h e c o m p a n y c h a r g e d that s h o p
s t e w a r d B, w h o left the plant shortly after
these t w o w o r k e r s , h a d signalled to t h e m ,
thus contributing to the s l o w - d o w n a n d the
s u b s e q u e n t walkout.
B c l a i m e d that he left
the plant to call the local u nion president
about the stoppage w h i c h a p p e a r e d to be d e
veloping, but a d m i t t e d h e w a s in the g r o u p
c o n g r e g a t e d at the plant gate for the next f e w
hours. H e denied that h e took a n y action or
other w i s e induced or e n c o u r a g e d the d a y - t u r n
m e n not to report for w o r k but, o n the c o n
trary, stayed to se e that the s toppage did
not spread. H e w a s n e w as a s h o p steward,
h e said, a n d m a y not h a v e fully p e r f o r m e d
his duties for that reason.
T h e arbitrator ruled against h i m .
" T h e evidence m a y not b e altogether clear
a n d certain of overt affirmative acts o n his
part of inducing or e n c o u r a g i n g this r e g r e t
table w o r k stoppage or of extending a n d e x
p a n d i n g it into the d a y turn.
But, if there b e
n o specific, concrete evidence of s u c h direct
m a l f e a s a n c e , there m o s t certainly is a m p l e
pro o f of g r o s s n o n - f e a s a n c e o n his part.
The
role a n d duties w h i c h the office of S h o p S t e w
a r d place u p o n B in the particular situation
w e r e not so c o m p l e x but that h e should not
h a v e k n o w n t h e m a n d could h a v e fulfilled t h e m
far m o r e efficiently than he did . . .
His
standing n e a r the gate with the group, s o m e
of w h o m w e r e hailing other e m p l o y e e s , could
h a v e h a d but o n e effect u n d e r those c i r c u m
stances.
It w a s to give his silent a p p r o v a l
of a n d sanction to the stoppage.
B e i n g the
S h o p Stewa r d , s u c h sanction a n d a p p r o v a l w a s
the inevitable effect of his p r e s e n c e . . ."
Selected S t a n d a r d s of J o b
Performance
cases
T h e m o s t frequent types of discipline
going to arbitration related to the
18
c h a r g e of i m p r o p e r w o r k p e r f o r m a n c e .
Such
c a s e s c o v e r e d negligence, i n c o m p e t e n c e , or
deliberate s l o w d o w n of production.
Almost
half of the discipline c a s e s arbitrated w e r e
related to s o m e p h a s e of w o r k p e r f o r m a n c e ,
with c h a r g e s of negligence accounting for al
m o s t o n e - q u a r t e r of the total.
Negligence
T h e basic principle of e m p l o y e e n e g
ligence for w h i c h discipline could b e i m p o s e d
w a s that the e m p l o y e e h a d not exe r c i s e d " due
c a r e " in the p e r f o r m a n c e of his job.
"Due
c a r e " w a s best d e s c r i b e d as that type of at
tention a n d p e r f o r m a n c e w h i c h a r e asonable
a n d p r u d e n t w o r k e r w o u l d give to the job in
the c i r c u m s t a n c e s .
A typical c a s e of alleged negligence
involved a n e m p l o y e e ,
Z, w h o stopped his
m a c h i n e , a 6 0 -inch lathe, a n d left to attend
to pe r s o n a l needs.
Th e m a c h i n e w a s engaged
in turning a roll to vary i n g d i a m e t e r sizes.
W h e n h e left the m a c h i n e it w a s ne a r l y fin
ished with o n e dia m e t e r , a n inch or so f r o m
the shoulder of the next larger dia m e t e r .
W h e n Z returned, the m a c h i n e w a s again in
operation, the cutting tool going b e y o n d the
first d i a m e t e r a n d into the s e c o n d one, c a u s
ing e x p e nsive d a m a g e .
Evidently the control
lever did not stop the m a c h i n e with absolute
certainty. T h e c o m p a n y c h a r g e d that Z should
have m a d e
sure that the control
was
in
a position w h e r e
the m a c h i n e w o u l d stay
stopped, or he should h a v e t h r o w n the m a s t e r
switch w h e n leaving the m a c h i n e .
p e r f o r m i n g a boring operation.
T h e u nion
c l a i m e d the m a c h i n e w a s old, not in top c o n
dition, a n d difficult to control, h a v i n g a m i l
ling a n d not a boring head.
M had never
oper a t e d s u c h a m a c h i n e a n d r e m i n d e d the
f o r e m a n of this, but w a s told to go ahead.
After the m a c h i n e started h e noticed that the
h e a d h a d shifted a n d the tool w a s digging in.
H e stopped the m a c h i n e a n d notified the f o r e
man.
T h e arbitrator*s opinion w a s that he
"finds h i m s e l f unable to conc l u d e that the
overcutting w a s entirely ch a r g e a b l e to negli
g e n c e o n M * s part.
H e sees far too m a n y
other factors then existing w h i c h could h a v e
contributed in w h o l e or in part, to the w o r k
not being right.
This includes the size of the
product, the fact that it w a s , at least, a rel
atively n e w job for this m a c h i n e , the rather
m a k e - s h i f t nature of the h e a d for the size of
the job, a n d the a g e a n d condition of the m a
chine.
A n y o n e or m o r e of these e l e m e n t s
could well h a v e b e e n a contributing, if not a
c o m p l e t e c a u s e of the m i s h a p .
M might have
b e e n c learer in reporting to his f o r e m a n the
difficulties h e encountered. B e that as it m a y ,
the fact still r e m a i n s that it cannot b e c o n
cluded with certainty that the o v e r cutting w a s
du e solely to negligence b y M . "
In the light
of all these c i r c u m s t a n c e s the u m p i r e felt
that a w a r n i n g w o u l d h a v e b e e n the fair dis
ciplinary p r o c e d u r e , rather than suspension.
T h e u m p i r e did not a g r e e with the
c o m p a n y that Z should h a v e u s e d the m a s t e r
switch or d i s e n g a g e d the feed.
"It m u s t be
a s s u m e d that this lever control i n s t r u m e n t
w h i c h Z u s e d w a s plac e d b y m a n a g e m e n t on
the m a c h i n e so that these other m o r e e x t r e m e
m e a s u r e s w o u l d not h a v e to b e res o r t e d to.
A reasonable, p r u d e n t m a n in Z*s c i r c u m
stances w o u l d h a v e d o n e just w h a t he did— us e
the control, set the lever at the ^ t o p * area,
a n d w h e n the m a c h i n e stopped, a s s u m e d that
it w o u l d stay that w a y . "
T h e question of
k n o w l e d g e of the defect could not b e b l a m e d
o n Z since the evidence s h o w e d h e h a d r e
p o r t e d the faulty condition of the control b e
fore the accident, a n d supervision h a d sent a
m a n to inspect a n d repair.
H e had every
r e a s o n to a s s u m e that the condition h a d b e e n
remedied.
N o t only the physical c i r c u m s t a n c e s
of m a c h i n e a n d surr o u n d i n g s w e r e considered,
but also the a g e a n d physical condition of the
workers.
In one c a s e the c o m p a n y c h a r g e d
negligence b e c a u s e a n e m p l o y e e , B, did not
stop a lift in t i m e to avoid a serious a c c i
dent.
"It m u s t b e r e c o g n i z e d , " the a r b i
trator said, "that our reflexes d o not react
with equal rapidity in all of us.
What m a y
constitute p r o m p t stopping of the roller line
for a m u c h y o u n g e r m a n m a y not b e so with
B.
T h e standard of du e c a r e to b e u s e d
m u s t b e one that takes into consideration the
a g e a n d condition of the m a n involved a n d all
the s u r r o u n d i n g c i r c u m s t a n c e s .
In this c o n
nection, the u m p i r e is c o n v i n c e d that B did
not ignore N*s signals.
H e believes it w a s
rather o n e of m i s t a k e or m i s u n d e r s t a n d i n g
a n d that o n c e B g r a s p e d the full m e a n i n g of
the situation, a n d with it, s a w that the flag
w a s up, he stopped the line as p r o m p t l y as
h e could.
It should not be o v e r l o o k e d that
everything o c c u r r e d in a m a t t e r of m i n u t e s . "
T h e d e g r e e of negligence in the p a r
ticular c i r c u m s t a n c e s
of the incidents in
v o lved w a s , of course, considered.
In one
c a s e the e m p l o y e e , M , w a s s u s p e n d e d for
overcutting a m a i n cylinder o n w h i c h h e w a s
N e g l i g e n c e m e r i t i n g discipline n e e d
not be p r e m i s e d exclusively o n direct r e s p o n
sibility, as long as it contributed to causing
the d a m a g e , the arbitrator in anot h e r B e t h l e
h e m c a s e held.
E v e n w h e n a nother e m p l o y
19
ee*s negligence c a u s e d the d a m a g e , a n e m
ploy e e m a y b e subject to discipline if the
d a m a g e w o u l d h a v e b e e n a v o i d e d if h e h a d
d o n e his job properly.
T h e c a s e in point
involved considerable loss of steel b e c a u s e
of a ladle failure.
T h e e m p l o y e e on w h o s e
shift the accident o c c u r r e d h a d taken ove r
the ladle only a short t i m e before the failure
occ u r r e d .
B o t h the e m p l o y e e o n duty a n d
the o n e w h o h a d b e e n relieved w e r e disci
plined,
the latter protesting the penalty.
T h e arbitrator a g r e e d with the c o m
p a n y that the e m p l o y e e o n the first turn w a s
negligent since the hole in the ladle h a d evi
dently de v e l o p e d during his shift a n d h e h a d
not detected it.
T h e fact that the s e c o n d e m
ployee did not e x a m i n e a n d detect it did not
relieve the first f r o m responsibility.
"And
as in our l a w of torts a n d negligence, our
courts d o r e cognize that w e m a y h a v e t w o
joint tortfeasors, e a c h negligent a n d each,
therefore, individually
responsible for the
a c c ident.11 T h e e m p l o y e e o n the first turn,
w h o h a d m a n y y e a r s of experience, should
h a v e b e e n m i n d f u l of the n e e d for careful
inspection, the arbitrator stated.
Inability to P e r f o r m the J o b
W h i l e the p r o b l e m of i n c o m p e t e n c e
m a y h a v e p layed a part in m a n y cases, it w a s
rarely singled out as the sole c a u s e for dis
cipline in the c a s e s arbitrated.
C h a r g e s of
discrimination or questions of relative v e r s u s
absolute ability also w e r e involved.
T h e one
or t w o s i m p l e cas e s of alleged i n c o m p e t e n c e
w h i c h w e r e not c o m p l i c a t e d b y the c i r c u m
stances of the situation w e r e d e c i d e d o n the
basis of the facts as the arbitrator s a w t h e m .
C o u n t e r - c h a r g e s of p e r s o n a l dislike
b y su p e r v i s o r s or retaliation for uni o n a c
tivity w e r e m a d e in a n u m b e r of cas e s of
alleged i n c o m p e t e n c e .
T h u s , in o n e case,
the e m p l o y e e w a s d e m o t e d to laborer b e c a u s e
of "long a n d continued" p o o r w o r k m a n s h i p ,
of w h i c h the c o m p a n y cited 12 specific in
stances. T h e e m p l o y e e h a d b e e n r e p r i m a n d e d
o n a n u m b e r of occasions a n d o n c e disciplined
for the quality of his w o r k .
T h e union c o u n
tered with the c h a r g e that the e m p l o y e e w a s
being d e m o t e d b e c a u s e of his activities as a
s h o p s t e w a r d — that the f o r e m a n h a d indicated
his intention to get rid of h i m , a n d b l a m e d
h i m for the defective w o r k of others in the
department.
T h e arbitrator c o n c l u d e d that
the e m p l o y e e ^ m i s t a k e s w e r e relatively m i
n o r a n d a p p e a r e d to h a v e b e e n the result of
s h e e r carelessness.
T h e c o m p a n y , said the
arbitrator, h a d not taken sufficient previous
m e a s u r e s to corr e c t his s h o r t c o m i n g s . Since
m o s for
t other
Digitized
FRASERe m p l o y e e s in the d e p a r t m e n t h a d
rec e i v e d r e p r i m a n d s similar to those given
this e m p l o y e e , he h a d n o w a y of k n o w i n g that
his w o r k w a s w o r s e than the a v e r a g e .
Hence
dem o t i o n , the arbitrator held, w a s too d r a s
tic a penalty.
A g r o u p of c a s e s relating to job p e r
f o r m a n c e w e r e c o n c e r n e d with inability to
p e r f o r m p r o p e r l y m o r e responsible jobs r e
quiring leadership a n d j u d g m e n t *
In one
case, the e m p l o y e e w a s d e m o t e d f r o m R i g g e r
L e a d e r for alleged "indifference, lack of j u d g
m e n t a n d safety m i n d e d n e s s ," w h i c h c u l m i n a t e d
in a n incident w h e r e his g a n g d a m a g e d a
d o o r w a y while m o v i n g e n d trucks.
The un
ion c o n t e n d e d that n o p r e vious disciplinary
action h a d pointed to a n y s h o r t c o m i n g s a n d
h e n c e his p r e s e n t d e m o t i o n c a m e "out of the
b l u e . " T h e arbitrator, establishing the a b
s e n c e of p r e vious discipline, found the d a m
a g e w h i c h w a s the i m m e d i a t e c a u s e for the
d e m o t i o n to b e "trivial."
Furthermore, an
analysis of p revious incidents failed to dis
close a n y serious e n o u g h to justify the penalty
imposed.
T h e p r e s e n t incident w a s a p p a r
ently du e to a failure of on e of the other m e n
to c a r r y out a n o r d e r w h i c h the grievant
gave.
N e v e rtheless, there w a s s o m e evi
dence^ the arbitrator found, that the e m p l o y e e
w a s "slipping" in his qualifications as a R i g
ger L e a d e r , d u e apparently to his attitude,
not his ability.
In v i e w of his past g o o d
record, the arbitrator felt that h e should
h a v e b e e n given a disciplinary s u s p e n s i o n
w h i c h w o u l d s e r v e as a w a r n i n g to i m p r o v e
his attitude •
Insubordination
T h e r e w e r e t w o m a i n categories of
insubordination
that w a r r a n t e d discipline—
refusal to o b e y orders, a n d a b u s e of s u p e r
visors.
T h e disputes involving discipline for
insubordination generally r e a c h e d arbitration
with complicating factors raised b y the griev
ant: e . g „ o r d e r s w e r e d i s o b e y e d b e c a u s e they
w e r e c o n s i d e r e d unreasonable; the s u p e r v i
s o r s 1 provoc a t i o n b r o u g h t o n the abuse.
In a c a s e w h i c h m a y s e r v e as a n
illustration of the first category, t w o
Molder
H e l p e r s w e r e e n g a g e d in supplying the M o l d
er s with brick. O b s e r v i n g that, in violation
of a standing order, they w e r e u sing n e w
bri c k w h e n old bri c k w a s available, the f o r e
m a n instructed t h e m to u s e the old brick.
T h e r e u p o n , they b e g a n to fill a buc k e t with
old brick. H o w e v e r , o n e of the helpers, K,
directed the C r a n e m e n to lift the b u c k e t c o n
taining the n e w b r i c k to the scaffold after the
f o r e m a n h a d left the scene.
T h e g e neral
f o r e m a n o b s e r v e d the n e w b r i c k being u s e d
a n d w a s told u p o n inquiry that the m e n h a d
20
b e e n w a r n e d against using it. H e a p p r o a c h e d
the a r e a a n d r e q u e s t e d the s e c o n d helper, Z,
to r e m o v e the n e w b r i c k f r o m the scaffold,
w h i c h h e refused to do.
Both m e n w e r e sus
p e n d e d for refusing to o b e y orders.
The
arbitrator upheld the suspension.
In the s e c o n d g r o u p of cas e s the act
of insubordination involved a n e m p l o y e e * s a r
g u m e n t with his super v i s o r a n d the u s e of
abus i v e lang u a g e in the heat of a r g u m e n t .
One employee was
d i s c h a r g e d for
insubordination involving the u s e of abusive
l a n g u a g e to the f o r e m a n . T h e e m p l o y e e , B,
a Plant Z o n e C o m m i t t e e m a n a n d S h o p Steward,
fell into a n a r g u m e n t with the general f o r e
m a n while presenting certain grievances to
him.
T h e case b e c a m e complicated when,
as a result of the e m p l o y e e ^ suspension, a
w o r k stoppage o c c u r r e d in the plant.
Al
t h o u g h the c o m p a n y recited a n u m b e r of p r e
vious incidents, the i m m e d i a t e c a u s e for the
d i s c h a r g e of B, w h i c h followed the s u s p e n
sion, w a s the a r g u m e n t m e n t i o n e d above.
Said the arbitrator, " R e v i e w of all the evi
d e n c e a n d t e s t i m o n y o n both sides convinces
the u m p i r e b e y o n d a n y re a s o n a b l e doubt that
B ls cond u c t as a S h o p S t e w a r d a n d C o m m i t
t e e m a n leaves m u c h to be desired.
It is not
i n c u m b e n t o n a S t e w a r d to go to m a n a g e m e n t
o n b e n d e d k n e e a n d plead as a supplicant.
A
certain a m o u n t of a g g r e s s i v e n e s s a n d forth
rightness is desirable o n both sides of the
table.
H o w e v e r , w h e n that a g g r e s s i v e n e s s
b r e a k s o v e r all r e a s o n a b l e b o u n d s a n d b e
c o m e s intimidation a n d abuse, the S t e w a r d
is not only insulting m a n a g e m e n t ; h e is m i s
representing the U n i o n . . . " T h e arbitrator
o r d e r e d the e m p l o y e e reinstated p r o v i d e d the
u n i o n a c c e p t e d as a condition of his reinstate
m e n t that h e w a s not to s e r v e as a union r e p
resentative for 6 m o n t h s .
A s e c o n d c a s e of insubordination in
volving a busive language, w h e r e the e m p l o y e e
said he " s w o r e b a c k at the f o r e m a n w h o w a s
s w e a r i n g at h i m . . . " h a d co nsiderably b r o a d
er implications, as the entire p r o b l e m of the
authority of f o r e m e n s e e m e d involved. . In
fact, the uni o n b a s e d its m a i n a r g u m e n t on
the n e e d of " c o m b a t t i n g possible f o r e m a n dic
tatorship. " T h e e m p l o y e e , operating a n e n
gine o n the floor of the plant, c a m e u p o n a
stalled c h a r g i n g m a c h i n e onh i s tracks in front
of a furnace, w h e r e a n electrician w a s w o r k
ing o n it.
T h e e m p l o y e e d e m a n d e d right of
w a y for his engine at the t i m e w h e n the f u r
n a c e w a s about r e a d y to b e tapped, although
h e later testified he w a s not a w a r e of this
or h e w o u l d not h a v e insisted o n passing. T h e
f o r e m a n apparently told the e m p l o y e e to stop,
since h e could not expect to c r o s s w h e n a
furnace w a s about to b e tapped.
T h e arbi
trator, ruling in favor of the c o m p a n y , c o n
cluded that u n d e r the stress of the situation
the f o r e m a n m i g h t h a v e b e c o m e impatient
w h e n J persisted in c o m i n g o n the floor.
!E v e n i f h e e x p r e s s e d this i m p a t i e n c e in s o m e
thing less than Chesterfieldian language, or
e v e n in s o m e t h i n g m o r e than the usually p u r
ple p r o s e of a n g r y m e n , the explosion
does
not p a s s b e y o n d the familiar reaction patterns
of steel m e n at w o r k together. W h e n H o r
d e r e d h i m to stay off, in w h a t e v e r l a n g u a g e or
b y w h a t e v e r gesture, h e should h a v e g u e s s e d
the o r d e r h a d g o o d mill r e a s o n s • • •
An
e m p l o y e e doe s not a b u s e a f o r e m a n for long
m i n u t e s o n en d before his c r e w s g a t h e r e d
about h i m to tap a heat. . . . H i s w h o l e
behavior, in refusing to k e e p off the floor
w h e n o r d e r e d so to d o b y p r o p e r mill a u
thority a n d then abusively a d d r e s s i n g that a u
thority in a n e x c h a n g e that at least originated
in his o w n insistence u p o n *right of w a y 1
s e e m s just c a u s e for his discipline."
O t h e r P r o b l e m s in Discipline
Cases
Purpose
of Discipline
Arbitrators tend to v i e w discipline
in industry as having the s a m e p u r p o s e as
enlightened p u n i s h m e n t in society; that is,
it is not p u n i s h m e n t for its o w n sake, but
is u s e d to correct the individual^ sho r t
c o m i n g s a n d to act as a preventive so that
others d o not c o m m i t the s a m e acts •
As
the arbitrators stated in o n e c a s e ". • .it
is c o m i n g to b e r e c Q g n i z e d as a basic p r i n
ciple in u n i o n - m a n a g e m e n t relations that the
p r i m a r y p u r p o s e of disciplinary action is to
c o r r e c t the e m p l o y e e * s s h o r t c o m i n g s , if p o s
sible, rather than to inflict p u n i s h m e n t . D i s
c h a r g e (or its equivalent) should b e r e s o r t e d
to only w h e n other appropriate m e a s u r e s fail.
A n exception m u s t b e recognized, of course,
in the c a s e of offenses that ar e in t h e m s e l v e s
sufficiently serious to m e r i t d i s c h a r g e without
a specific prior war n i n g . "
A s o m e w h a t different e m p h a s i s o n
the p u r p o s e of discipline w a s given b y another
arbitrator: " . . . all discipline of continuing
e m p l o y e e s , like S, p o s s e s s e s a twofold p u r
pose.
It is not only punitive in t e r m s of a
past offense but also preventive in t e r m s of a
s p u r t o w a r d m o r e careful a n d responsible
s h o p p e r f o r m a n c e a n d b e h a v i o r in the future.
T h a t is w h y so m u c h wei g h t is
frequently
p l a c e d u p o n a n e m p l o y e e ^ g e neral r e c o r d
w h e n a s s e s s m e n t of discipline u p o n h i m for
a given offense is u n d e r consideration. "
21
Considerations for Fixing P e nalty
T h e considerations w h i c h the c o m
p a n y should take into account, the arbitrators
h a v e stated, a r e in g eneral those w h i c h a
court judge w o u l d u s e in sentencing a n of
fender.
F a c t o r s w h i c h the B e t h l e h e m a rbi
trators often m e n t i o n e d a r e d i s c u s s e d below:
P a s t r e c o r d of the w o r k e r . — A g o o d
w o r k e r w h o m a d e a n occasional m i s s t e p w a s
entitled to h a v e his past g o o d r e c o r d taken
into account.
This w a s p r o b a b l y the m o s t
frequent consideration in setting the d e g r e e
of the penalty.
Undoubtedly, it w a s taken into
a c c o u n t in m o s t of the c a s e s although not
a l w a y s expre s s e d .
T h e following quotations
f r o m a r b i t r a t o r ^ decisions indicate the c o n
sideration given the w o r k e r *s past record:
• • . his r e c o r d contains n o similar
prior errors.
In v i e w of his loyal
a n d de v o t e d service, h e w o u l d s e e m
certainly to m e r i t a c h a n c e of s h o w
ing that April 8, 1947, will m a r k his
last as well as his first failure of
this kind in his responsibility as a
roller.
*
*
*
F should b e given anot h e r c h a n c e a n d
if he w e r e to be returned to his old
job w h i c h h e has held d o w n so satis
factorily these m a n y years, it is safe
to anticipate that h e w o u l d give n o
further c a u s e for complaint.
Seriousness of the charge. — T h e s e riousness of the w r o n g f u l act w a s o n e of the
considerations in fixing the d e g r e e of penalty.
P e r s o n a l m i s c o n d u c t , s u c h as fighting, justi
fied discharge, the arbitrators h a v e held. Fal
sifying r e c o r d s relating to the job h a s like
w i s e b e e n r e c o g n i z e d as a serious offense.
D e m o t i o n w a s usually the penalty for the m o r e
serious types of offenses related to job p e r
f o r m a n c e , a n d s u s p e n s i o n w a s the penalty for
m o s t other offenses.
A m o u n t of d a m a g e .— In c a s e s of n e g
ligence, severity of the penalty w a s usually
judg e d in relation to the extent of d a m a g e
caused.
T h e a m o u n t of steel lost as a result
of negligence, for e x a m p l e , w a s a n objective
m e a s u r e of the n u m b e r of day s s u s p e n s i o n
w h i c h could be i m p o s e d .
C u s t o m a r y practices •— T h e a m o u n t
of penalty m a y b e b a s e d o n w h a t the c o m p a n y
has established as the practice in similar
cases.
In o n e c a s e w h e r e the grievant w a s
protesting a 5 - d a y s u s p e n s i o n for negligence
resulting in the loss of 110 tons of m o l t e n
steel, the arbitrator asked, " W a s the penalty
u n d u l y s e v e r e ? " His a n s w e r w a s , " T h e c o m
p a n y ^ policy in s u c h c a s e s as this h a s b e e n
to v a r y the penalty a c c o r d i n g to the a m o u n t of
steel lost.
M e n h a v e b e e n given a 1 - d a y s u s
p e n s i o n for a loss of as little as 40 0 to 600
pounds.
In v i e w of this practice, a 5 - d a y
s u s p e n s i o n for a loss of 110 tons is not un d u l y
severe. "
R e a s o n a b l e n e s s of the penalty.— It
w a s generally a c c e p t e d that the p u n i s h m e n t
m u s t not be exc e s s i v e in relation to the m i s
conduct.
W h e n the penalty a p p e a r e d to b e
greater than w a r r a n t e d , arbitrators h a v e r e
d u c e d it.
In s o m e c a s e s the penalty w a s r e
d u c e d in the better interest of industrial r e
lations •
Oth e r c o n siderations.— W h e n the sur
rounding conditions contributed to the e m p l o y
e e ^ w r o n g f u l action, arbitrators h a v e taken
s u c h mitigating c i r c u m s t a n c e s into acco u n t
and have reduced the penalty.
As previously
indicated, the principle that e m p l o y e e s m u s t
b e appropriately w a r n e d w a s t aken into a c
count; w h e r e a n e m p l o y e e h a d b e e n u n a w a r e
that his actions w e r e subject to penalty, the
arbitrators h a v e l e s s e n e d or set aside the
penalty.
A l t h o u g h on e e m p l o y e e w a s not to
b e penalized m o r e s e v e r e l y than another for
a similar type of offense, past p e r f o r m a n c e
a n d the a m o u n t of d a m a g e c a u s e d w e r e taken
into consideration in a s s e s s i n g penalties.
PART
III —
SENIORITY
Preference
in p r o m o t i o n ,
down
grading, layoff, a n d recall b y o r d e r of s e n
iority (length of service) is b a s e d o n the
principle that the individual with the longer
service in the f i r m m e r i t s the greater r e
w a r d a n d job protection.
Agreements be
t w e e n u nion a n d m a n a g e m e n t f o r m a l l y p r o
vide for seniority rights.
Application of a straight seniority
rule, w h e r e b y length of service a l w a y s g o v
erns, is the s i m plest p r o c e d u r e .
It rules
out questions of p e r s o n a l bias or favoritism
w h i c h m a y arise u n d e r contract clauses in
w h i c h relative ability or other factors h a v e
to b e c o n s i d e r e d along with seniority.
It
poses fewer problems
of interpretation.
H o w e v e r , straight seniority is m e c h a n i c a l
in operation a n d m a y result in the p r o m o t i o n
or retention of less qualified e m p l o y e e s .
B e t hlehem*s contracts with the United
S t e e l w o r k e r s (CIO) r e c o g n i z e d a principle of
seniority limited b y the factors of ability
a n d physical fitness.
T h e contract clause
(Article X, Section 1 of the 1945 a n d 1947
A g r e e m e n t s ) r e a d as follows:1
In the p r o m o t i o n of E m p l o y e e s to
n o n s u p e r v i s o r y positions a n d for
the p u r p o s e of layoffs in connection
with the d e c r e a s i n g of the w o r k i n g
force a n d of the recalling to w o r k
of m e n so laid off, the following
factors shall b e considered, a n d if
factors (b) a n d (c) a r e relatively
equal, length of continuous service
shall govern:
(a) L e n g t h of continuous s e r v
ice in the applicable unit d e t e r m i n e d
as p r o v i d e d in Section 2 of this
Article;
(b) Ability to p e r f o r m the w o r k ;
and
(c) P h y s i c a l fitness.
T h e desirability of s o m e restric
tion o n seniority rules w a s e x p r e s s e d b y
the arbitrator in o ne of the B e t h l e h e m p r o
m o t i o n c a s e s as follows:
T h e provisions as fou n d in the
A g r e e m e n t represent a
sensible
working compromise. A n extreme
u nion position w o u l d b e imposition
of straight seniority.
A n extreme
e m p l o y e r position w o u l d b e p r o
m o t i o n b a s e d only o n ability. W i t h
out attributing to the parties a d v o
c a c y of either position, it is m a n
ifest that the provisions, as found,
r e p r e s e n t a c o n s e n s u s that, g e n
erally speaking, length of service
shall b e r e w a r d e d with opportunity
for p r o m o t i o n , a n d that the C o m
p a n y shall not b e b o u n d solely b y
that in c & s e s w h e r e
ability a n d
physical fitness a r e not relatively
equal.
T h e provisions as stated h e r e a s
s ure to the C o m p a n y m a i n t e n a n c e
of efficient operation, so that m e r e
length of t i m e will not c o m p e l p r o
m o t i o n to superior jobs.
A t the
s a m e time, the w o r k e r is protected,
in that his length of service will be
r e c o g n i z e d initially w h e n p r o m o
tions are considered.
G e n e r a l Interpretation of the
Seniority C l a u s e
T h e application a n d interpretation
of the B e t h l e h e m seniority clause b y dif
ferent arbitrators w e r e not unif o r m .
The
differences h a v e b e e n largely m a t t e r s of
emphasis on the importance of seniority as
contrasted with ability a n d physical fitness
a n d h a v e d e v e l o p e d out of the l a n guage of the
provision a n d the relatively large a r e a s of
j u d g m e n t established thereby.
L e n g t h of service w a s the factor
given the greater e m p h a s i s b y o n e of the
arbitrators: n W h i c h e v e r w a y the conditions
b e stated, it is clear that the starting point
for p r o m o t i o n is length of service.
The
other t w o factors b e c o m e viable only s u b
sequently. In effect, they s e r v e as the basis
/for nondeci s i v e n e s s of length of service.
T h e y a r e thus exceptions to w h a t s e e m s to
h a v e b e e n the intent of the parties, to wit,
that in the a b s e n c e of these exceptions,
length of service shall g o v e r n . ,f
1
The 1942 Agreement contained an addi
O n the other hand, ability a n d p h y s
tional provisional the seniority clause that family
ical fitness w e r e the m o r e i m p o r t a n t factors
hardship resulting from layoff would be considered
in the opinion of anot h e r u m p i r e :
“Only
in individual cases by mutual agreement between
the company and the Grievance Committee.
if t w o candidates for a p r o m o t i o n a l v a c a n c y
(23 )
24
p o s s e s s ability to perforin its w o r k A n d p h y s
ical fitness that c a n b e d e e m e d Relatively
e q u a l 1 d o e s the m a n with longer continuous
service acquire title to the job. T h e factors
of ability a n d fitness, a c c ordingly m u s t be
given first consideration. . . .11
w h o though junior in length of service, is
a b o v e a v e rage, the standard for c o m p a r i s o n
is then fixed at that a b o v e - a v e r a g e point, a n d
if the c o m p l a i n a n t does not r e a c h that rel
ative a b o v e - a v e r a g e ability, his c l a i m m u s t
fail. "
There was s o m e agreement a m o n g
the arbitrators that the relative i m p o r t a n c e
of ability as a factor will vary, d e p e n d i n g
o n the nature a n d skill of the job.
One
arbitrator c o m m e n t e d :
‘'Thus w h e r e the
vaca n t job is a n unskilled or semiskilled one,
s o m e of the e l e m e n t s of the ability factor
s u c h as training, past exper i e n c e a n d the
like, m i g h t well h a v e less force a n d effect
than w h e r e the vacant job is a highly skilled
one. . . . "
A s stated in another case:
"In
l o w e r rated jobs seniority m a y be a l m o s t the
controlling factor, but for jobs of this type
(first helper) m a n a g e m e n t ' s appraisal of abil
ity m u s t b e given considerable weight. . . ."
Ability just ad e quate to d o the job,
it w a s held, is not enough.
". . • it is
obviously not e n o u g h to s h o w that the senior
e m p l o y e e ha s m e r e l y qualifying ability . . .
i. e . , that h e c a n p e r f o r m the m i n i m u m job
r e q u i r e m e n t s satisfactorily.
If that is the
extent of the senior e m p l o y e e ’s ability a n d
the junior e m p l o y e e h a s d e m o n s t r a t e d abil
ity that c a n be classified as superior or
excellent, he c a n b e p r o m o t e d in p r e f e r e n c e
to the senior e m p l o y e e .
If the junior e m
ployee h a s ability that c a n b e classified as
only avera g e , then he c a n b e given p r e f e r
enc e only if the senior e m p l o y e e ha s glaring
deficiencies. "
Interpretation of "Relative Ability"
Differences in ability m u s t b e subtantial a n d m i n o r differences a r e not suf
ficient to override greater length of service.
A s e x p r e s s e d b y o n e of the arbitrators: " W e
thus arrive at the conclusion that m e r e abil
ity to satisfy the m i n i m u m r e q u i r e m e n t s of
the job is not e n o u g h to c o m p e l o b s e r v a n c e
of strict
seniority.
O n the other hand,
m i n o r differences in ability or physical fit
n e s s a r e not e n o u g h to justify d e p arture
f r o m the o r d e r of seniority."
In the application of the seniority
clause, the principal issues reaching the
arbitrators c e n tered about the interpretation
of "relative ability" in the various c i r c u m
stances.
The m e a s u r e m e n t
of length of
service p r e s e n t e d n o special p r o b l e m (aside
f r o m the question of seniority units), b e c a u s e
of the availability of the c o m p a n y ’s e m p l o y
m e n t records, a n d the m a t t e r of physical
fitn ess, w h i c h w a s rarely a n issue, could
usually be decided on the basis of m e d i c a l
evidence. B u t the d etermination of "relative
ability" involved the evaluation of the abil
ities of t w o or m o r e individuals for a p a r
ticular job.
F o r this, there w e r e s e l d o m
a n y objective m e a s u r e s w h i c h could be used,
a n d subjective c o m p a r i s o n s w e r e not c o n
clusive.
A c c o r d i n g to the contracts, ability
a n d physical fitness m u s t b e
"relatively
equal" before length of service b e c o m e s the
sole deciding factor.
W h a t does "relatively
equal" m e a n ? V a r i o u s decisions of the B e t h
l e h e m arbitrators h a v e defined a n d n a r r o w e d
the m e a n i n g of the phrase.
A b s o l u t e equality, it w a s held, is
not n e c e s s a r y . A s pointed out b y one of the
arbitrators:
"The
words
ar e
’relatively
equal. 1 Is it not clear then that the parties
h a v e in m i n d s o m e d e g r e e of inequality, the
m e r e existence of w h i c h will not suffice to
c o m p e l disregarding length of service?"
A v e r a g e ability is not sufficient
w h e r e the junior e m p l o y e e ha s d e m o n s t r a b l e
greater ability. "If the particular e m p l o y e e
T h e ability in question m u s t b e in
existence at the t i m e of the p r o m o t i o n .
Ca
pability of learning is not sufficient a n d the
arbitrators h a v e held in a large n u m b e r of
c a s e s that the c o m p a n y has n o contractual
obligation to offer the senior e m p l o y e e a
trial period. T hus, to give a n illustration,
a ve t e r a n w a s p a s s e d o v e r for p r o m o t i o n
e v e n t h ough h e h a d greater seniority, c o u n t
ing his military service. T h e union c l a i m e d
that the vete r a n could p e r f o r m the h i g h e r rated job, e v e n though he h a d n e v e r w o r k e d
at it. In his decision the arbitrator stated,
"Capability in connection with a job is not
the s a m e as ability to p e r f o r m the w o r k .
It does not give a m a n a c l a i m to a job
u n d e r Article X.
H e m u s t have d e m o n
strated his ability to p e r f o r m the w o r k ,
either b y having successfully w o r k e d o n the
job or u p o n on e so closely similar that his
ability cannot b e questioned.
Neither
of
these tests h a v e b e e n satisfied in this case.1'
In another case, a n e m p l o y e e with
15 y e a r s of seniority w a s p a s s e d o v e r in
p r o m o t i o n in favor of one with only about 1
y e a r of seniority.
T h e union disputed the
c o m p a n y ’s c l a i m of superior ability o n the
25
part of the junior m a n a n d insisted that the
senior m a n should b e given a trial period
o n the higher rated job.
11(the union) does
not argue, “ said the arbitrator, "that s u c h
a trial period is r equired b y the A g r e e m e n t ,
but it contends that this is the only w a y that
the C o m p a n y could accurately judge S's abil
ity. I a m unable to accept this contention.
T h e C o m p a n y testified that the U n i o n p r o
p o s e d s u c h trial periods in contract n e g o
tiations a n d the pr o p o s a l w a s rejected.
The
U m p i r e obviously has n o authority to write
into the A g r e e m e n t a provision that w a s dis
c u s s e d a n d rejected in collective bargaining
negotiations. n
Ability a c q u i r e d outside the s e n
iority unit m a y b e taken into consideration.
In a c a s e w h e r e a n e m p l o y e e w a s d e m o t e d
f r o m A n n e a l e r A to A n n e a l e r B while another
with less continuous service w a s retained
as a n A n n e a l e r A, the junior m a n w a s found
to h a v e greater ability b e c a u s e of p revious
ex p e r i e n c e as a n A n n e a l e r in another depart
m e n t . In c o m m e n t i n g o n e x p e rience outside
the unit the arbitrator said, “ T h e U m p i r e
notes that L's greater experience, training
a n d ability for the A n n e a l e r A job ove r that
of M did derive in s o m e large m e a s u r e f r o m
w o r k outside the seniority unit.
Although
service outside of the bargaining unit m a y
not count for unit length of service p u r p o s e s ,
it m a y c o m e into play in considering the
relative ability factor.
Ability is ability
r e g a rdless w h e r e it b e derived f f o m . . . . “
T h e ability w h i c h a n e m p l o y e e m u s t
d e m o n s t r a t e is the ability applicable to the
particular job. W h e r e a job is unskilled a n d
requires n o particular ability, p o s s e s s i o n of
outstanding ability in other directions is not
e n o u g h to o verride seniority.
In a c a s e of
this nature, the arbitrator stated, “ . . . T h e
C o m p a n y a d m i t t e d that the R o u g h e r Helper's
job requires but little skill a n d ability, a n d
it did not d e m o n s t r a t e that L*s greater mill
exper i e n c e a n d his ability o n the Assistant
Roller's job w o u l d give h i m a substantial
a d v a n t a g e O v e r C in the p e r f o r m a n c e of the
duties of the R o u g h e r Helper.
Since it w a s
not d e m o n s t r a t e d that L has substantially
greater ability for the job in question than
C, it is n e c e s s a r y to conclude that the job
should h a v e g o n e to C o n the basis of length
of service. . . .“
Ability to p e r f o r m the w o r k p e r
tains to all the r e q u i r e m e n t s of the job a n d
not just parts of it.
In this connection,
physical fitness m a y b e a d e t e r m i n i n g factor.
T h u s , in one c a s e a L a b o r e r w a s laid off
b e c a u s e h e refused to do the heavier jobs,
alleging a kidney ailment.
In sustaining the
layoff, the arbitrator stated:
. • There
is n o obligation u p o n the C o m p a n y to k e e p a n
e m p l o y e e at w o r k w h o c a n d o only selected
a n d limited w o r k w h e n it is able to retain in
his place a w o r k e r w h o h a s n o physical dis
abilities a n d c a n thus d o all the w o r k right
fully e xpected of h i m . . . . “
Measurement
of Ability
T h e m o s t frequent a n d often the
m o s t i m p o r t a n t p r o b l e m w h i c h h a d to b e
r e s olved b y the arbitrator w a s the m e a s u r e
m e n t of “ relative ability. “
W h i l e in s o m e
c a s e s there w e r e objective m e a s u r e s of abil
ity, there w a s a l m o s t a l w a y s p r e s e n t a s u b
jective e l e m e n t b a s e d o n the j u d g m e n t of
other e m p l o y e e s or supervisors.
R e g a r d l e s s of the m e a s u r e m e n t of
ability, the b u r d e n of proof in seniority c a s e s
w a s o n the c o m p a n y . If the senior e m p l o y e e
w a s retained in a layoff or selected for p r o
m o t i o n the c o m p a n y h a d to s h o w that h e h a d
ability “ relatively" equal to the junior w h o
challenged the action.
In the choice of a
junior e m p l o y e e , the c o m p a n y h a d to p r o v e
that his ability w a s substantially greater than
that of the senior.
Arbitrators m a i n t a i n e d this principle
in a n u m b e r of the B e t h l e h e m ca s e s reviewed.
Thus: “ It is both r e a s o n a b l e a n d n e c e s s a r y
to require the C o m p a n y to offer finite a n d
definite proof to support its j u d g m e n t of the
c o m p a r a t i v e 'ability of t w o or m o r e c a n d i
dates for a given job.111 Again: “ T h e
bufdan
of prov i n g that a n exception (to seniority
rights) is called for in a particular c a s e
m u s t b e a s s u m e d b y the C o m p a n y . "
O n e objective but partial m e a s u r e of
relative ability w a s the p o s s e s s i o n a n d p e r
f o r m a n c e of a job for a long p e riod without
c o m p l a i n t o n the part of the c o m p a n y .
In
o n e c a s e a n e m p l o y e e w a s d o w n g r a d e d during
a reduction in force, while junior m e n w e r e
retained at the higher grade.
Since the m a n
h a d p e r f o r m e d the job for m o r e than a y e a r
prior to his reduction without w a r n i n g s or
disciplinary action, the arbitrator inferred
that the c o m p a n y c o n s i d e r e d that he did h a v e
the ability to p e r f o r m the job. This in itself
w o u l d not p r o v e ability “ relatively equal" to
the others, but the e m p l o y e e w a s the only
o n e of the g r o u p w h o h a d b e e n selected, a
short t i m e previously, to fill a t e m p o r a r y
v a c a n c y requiring higher skill.
T h e s e facts
together, the arbitrator felt, pointed to abil
ity at least as great as that of the others.
F o r the m o s t part, the d e t e r m i n a
tion of relative ability h a d to b e b a s e d o n the
26
evaluation of s upervisors a n d fellow e m p l o y
ees. This w a s particularly true in the higher
rated jobs w h e r e intelligence a n d j u d g m e n t
as well as m a n u a l skill ar e factors in w o r k
performance.
In l o w e r rated jobs, w h e r e
w o r k is routine a n d is largely m e a s u r e d b y
the n u m b e r of units p r o d u c e d or w o r k e d on,
there w a s a m o r e objective basis for e v a l u
ation of ability.
M a n a g e m e n t ’s appraisal of a n e m
p l o y e e s ability w a s given c onsiderable w e ight
b y the arbitrators.
In a decision w h e r e t w o
senior e m p l o y e e s w e r e p a s s e d over, the arbi
trator stated:
"In e a c h of the a b o v e c a s e s
the provisions of this decision do not p e r
m a n e n t l y disqualify S a n d C for p r o m o t i o n to
F irst H e l p e r jobs. H o w e v e r , the U m p i r e d o e s
not intend to upset w h a t a p p e a r s to b e the
c o n s i d e r e d j u d g m e n t of M a n a g e m e n t that S
n o w lacks s o m e of the n e c e s s a r y qualifica
tions of skill a n d independent j u d g m e n t r e
quired for as i m p o r t a n t a job as regular
First Help e r . N o r does the U m p i r e r e v e r s e
M a n a g e m e n t ’s j u d g m e n t that at least at the
date of the h e aring C w a s not yet r e a d y for
p r o m o t i o n to a regular First H e l p e r Job. In
l o w e r rated jobs seniority m a y b e a l m o s t the
controlling factor but for jobs of this type
M a n a g e m e n t ’s appraisal of ability m u s t b e
given considerable weight. Since this is so
it places a h e a v y responsibility o n M a n a g e
m e n t to be impartial a n d judicial in its w e i g h
ing of the ability factor in p r o m o t i o n . 11
In attempting to evaluate the relative
abilities of the c o m p e t i n g parties, h o w e v e r ,
arbitrators h a v e c o n s i d e r e d the appraisal of
s u p e r v i s o r s as evidence, but not as c o n c l u
sive.
A s the arbitrator said in o n e case:
" H e (the arbitrator) treats the j u d g m e n t of
these s u p e r v i s o r y e m p l o y e e s as h o n e s t a n d
sincere, but limited only as t e s t i m o n y that
h e m u s t consider along with all other testi
mony.
U n d e r n o c i r c u m s t a n c e s m a y this
p r e m i s e , that the j u d g m e n t of a u p e r v i s o r y
e m p l o y e e s b e decisive, b e a c c e p t e d . "
H e n c e , there w a s n o single standard
b y w h i c h a n e m p l o y e e ’s ability could b e judged
in seniority cases.
T h e rule w a s stated in a
p r o m o t i o n cas e as follows:
" T h e standard
of ability for c o m p a r a t i v e p u r p o s e s is not a
fixed o n e in all seniority cases.
It m i g h t
well v a r y f r o m job to job a n d e v e n b e t w e e n
the s a m e jobs.
T h u s in one seniority case,
the s t a ndard of ability m a y be of the highest.
In another, it m a y b e ma r g i n a l .
A n d still in
another, it m a y
be in b e t w e e n both.
The
stan d a r d of ability is fixed b y the e m p l o y e e
w h o m the C o m p a n y has p r e f e r r e d o v e r the
a g g r i e v e d e m p l o y e e with the greater length
of continuous s e r v i c e . "
Employee
Rights in Seniority
ses
Seniority situations generally involve
the rights of three parties— the senior a n d
junior e m p l o y e e s a n d the c o m p a n y .
Under
the B e t h l e h e m a g r e e m e n t the e m p l o y e e with
substantially greater ability a n d physical fit
n e s s m a y b e p r e f e r r e d in p r o m o t i o n s a n d
layoffs o v e r the senior e m p l o y e e . T h e c o m
p a n y ’s right to select the best qualified e m
ployee w a s also affected b y the seniority
clause.
O n the other hand, if the senior
e m p l o y e e h a d ability a n d physical fitness
"relatively equal" to his junior competitors,
h e h a d the right to b e selected.
Seniority Rights of Ret u r n i n g
Veterans
Veterans
returning to their jobs
after W o r l d W a r II w e re involved in p r o b l e m s
relating to seniority, out of w h i c h g r e w a
n u m b e r of g r ievance c a s e s w h i c h h a d to b e
settled b y arbitration. T h e Selective Service
A c t g u a r a n t e e d that if the jobs they h a d left
or those of "like seniority, status a n d pay, "
w e r e available, the returning veterans w e r e
to b e r e s t o r e d to s u c h jobs.
B e t h l e h e m ’s
a g r e e m e n t with the union also g a v e veterans
these rights.
T h e situation w a s confused, h o w
ever, w h e n the D i r ector of Selective Service
w e n t b e y o n d the w o r d i n g of the act a n d issued
a ruling that veterans w e r e to b e p r e f e r r e d
in d o w n g r a d i n g a n d layoff p r o c e d u r e s .
In
the application of this "superseniority" rule,
m a n y n o n v e t e r a n s at B e t h l e h e m w e r e dis
p l a c e d b y veterans w h o h a d less seniority,
e v e n after credit for their t i m e o n military
leave w a s a d d e d to their seniority.
A large
n u m b e r of griev a n c e s w e r e filed b y displaced
nonveterans, w h o c o m p l a i n e d that their s e n
iority rights as g u a r a n t e e d t h e m u n d e r the
a g r e e m e n t h a d b e e n violated.
B e f o r e these g r ievances
reached
arbitration, the U . S . S u p r e m e C o u r t ruled
(Fishgold vs. Sullivan D r y d o c k a n d R e p a i r
Corporation, 328, U . S . 275) that veterans
w e r e not entitled to "superseniority" rights.
After this decision in M a y 1946, the c o m p a n y
c h a n g e d its e m p l o y m e n t practice to c o n f o r m
with the Court* s ruling.
T h e arbitrators, in these veterans
cases, held that the c o m p a n y w a s liable for
loss of p a y inc u r r e d as a result of the appli
cation of " s u p e r seniority" to returning ve t
erans.
T h e r e w a s clearly a contract viola
tion.
E v e n though the c o m p a n y h a d followed
the ruling of the Selective S e rvice Director,
27
s u c h ruling w a s not the l a w 0 A s the a r b i
trator said, n . . . the C o m p a n y ^ plea of
not k n o w i n g w h a t to do in the wel t e r of c o n
fusion is not a legal equitable matt e r . T h e r e
is a n A n g l o - S a x o n principle of l a w in w h i c h
i g n o r a n c e of the l a w is n o excuse.
It is
true that n o clear-cut interpretation of the
l a w w a s available but that d o e s not e x c u s e
liability u n d e r that law.
It is unfortunate
that l a w s a r e not so written as to exclude
the necessity for interpretation, but s u c h a
fact doe s not exclude liability being i m p o s e d
w h e r e s u c h liability c a n be d e t e r m i n e d , as
in this case, "
A n o t h e r type of seniority situation
involving veterans is illustrated in the c a s e
of the returning v e t e r a n w h o req u e s t e d that
h e replace a n o n v e t e r a n w h o h a d b e e n p r o
m o t e d during the f o r m e r ^ military service.
T h e arbitrator a r g u e d that if the c a s e h a d
involved n o n v e t e r a n s there w o u l d b e n o basis
for the grievance.
T h e veteran*s request,
said the arbitrator, w a s ". . •
contrary
both in spirit a n d letter to the Selective
Service A c t a n d the United States S u p r e m e
Court* s decision a n d d i c t u m in the Fish g o l d
case.M
T h e r e is nothing in the
act, the
arbitrator stated, that grants a vete r a n the
p r e f e r r e d right o v e r the n o n v e t e r a n that h e
b e p r o m o t e d to a job w h i c h w a s vacant while
h e w a s in service a n d then filled with a n o n
veteran employee.
V e t e r a n s 1 rights u n d e r
the act a r e twofold:
"First, h e h a s b e e n
afforded job security, i. e . , he m u s t b e r e
instated into the job he left w h e n h e w e n t into
service. H e is thus a s s u r e d of the return of
his f o r m e r job or o n e of like seniority, sta
tus a n d pay.
H e is g u a r a n t e e d against a n y
loss in that respect.
T h e r e is then the s e c
o n d p h a s e of his legal rights as a v e t e r a n
u n d e r the act.
It is that after s u c h rein
s t a t e m e n t to his f o r m e r job he not lose his
Seniority, 1 i. e . , length of continuous s e r v
ice standing a n d ot h e r w i s e enjoy ins u r a n c e
a n d other benefits available to e m p l o y e e s o n
f u r l o u g h or leave of a b s e n c e . 1 A n y t h i n g
b e y o n d these rights as they a r e set forth in
the act cannot derive f r o m the act, a n d in
turn, cannot b e c l a i m e d thereunder. **2
w h o admittedly w e r e legitimately displaced b y
senior m e n protested the d i s p l a c e m e n t of the
m a n at the top w h i c h started the chain reaction
of " b u m p i n g . " In the opinion of the arbitrator
". . . seniority c a n har d l y b e said to extend
b e y o n d the i m m e d i a t e p r o m o t i o n or d e motion.
Rights a r e not a c q u i r e d b y seniority in jobs
that a r e two, three, or four t i m e s r e m o v e d
f r o m the next step p r o m o t i o n or d e motion.
F o r if this w e r e true, e v e r y e m p l o y e e w o u l d
a c quire rights t h r o u g h seniority in e v e r y other
w o r k e r fs job,"
Seniority Rights of W a r t i m e
W o m e n Employees
A n o t h e r g r o u p of seniority c a s e s in
v o lved a large n u m b e r of w o m e n w h o w e r e
e m p l o y e d b y B e t h l e h e m during W o r l d W a r II
to fill the jobs left vaca n t b y m e n w h o h a d
joined the A r m e d F o r c e s .
After the e n d of
the w a r , w h e n the m e n h a d retu r n e d to their
jobs, the c o m p a n y t e r m i n a t e d the services of
those w o m e n w h o did not resign voluntarily
or ac c e p t w o r k in the tin mill sorting r o o m ,
w h i c h h a d traditionally e m p l o y e d only w o m e n .
E i g h t y - t w o of the w o m e n so t e r m i n a t e d filed
griev a n c e s c h a rging that the c o m p a n y h a d vio
lated their seniority rights a n d asking to be
reinstated with b a c k p a y for the pe r i o d of
their layoff.
In the arbitration hearings, the c o m
p a n y c o n t e n d e d that the w o m e n h a d b e e n hired
o n a t e m p o r a r y basis as a w a r t i m e expedient
a n d both the uni o n a n d the individual w o m e n
c o n c e r n e d w e r e cognizant of the t e m p o r a r y
situation.
F u r t h e r m o r e , stated the c o m p a n y ,
w o m e n did not h a v e " relatively equal** ability
a n d physical fitness to p e r f o r m s u c h jobs,
w h i c h r e q uired the strength a n d s t a m i n a of a
m a l e w o r k force.
T h e c o m p a n y considered
that the e m p l o y m e n t of these w o m e n h a d b e e n
terminated, a n d that it h a d n o intention of
considering t h e m for recall.
In deciding w h e t h e r or not the w o m e n
w e r e t e m p o r a r y e m p l o y e e s , the arbitrator
ruled that the a g r e e m e n t m u s t b e applied
" r e gardless of w h e t h e r or not h e feels that
the provisions w o r k a h a r d s h i p o n one par t y
S e v e r a l c a s e s arising as a result of
to the a g r e e m e n t . ** Definite limits a r e p l aced
a returning ve t e r a n displacing a senior m a n
o n the c o m p a n y ^ right to t e r m i n a t e the job
involved the rights of junior e m p l o y e e s w h o
tenure of the e m p l o y e e s , said the arbitrator,
w e r e ,fb u m p e d M d o w n the line.
Employees
a n d seniority, ability to p e r f o r m the w o r k ,
a n d physical fitness m u s t be c o n s i d e r e d in
2
The 1947 Agreement, which was adopted
m a k i n g layoffs.
N o r did the arbitrator c o n
subsequent to these cases, included a provision
sider valid the c o m p a n y ^ contention that the
in the seniority clause which said that the com
union a n d the w o m e n involved k n e w about the
pany would "endeavor, as job vacancies shall
t e m p o r a r y status of the w a r - t i m e jobs.
become available, to move any employee who
shall be reemployed . . . to or toward the job
that he might have attained . , . if he had not
been absent in such (military) service. "
Ih ruling o n w h e t h e r or not the w o m
e n h a d ability a n d physical fitness " relatively
28
equal" to that of the m e n , the arbitrator r e
jected the union's contention that the w o m e n ' s
capabilities w e r e attested to b y the long p e
riod in w h i c h they held jobs, since the fact
that l o w standards of p e r f o r m a n c e tolerated
du r i n g the w a r did not m e a n that the s a m e
level h a d to b e a c c e p t e d forever thereafter.
" U n d e r the pres e n t c i r c u m s t a n c e s , the defi
ciencies of i n c u m b e n t e m p l o y e e s , e v e n if long
e n d ured, constitute a d e quate g r o u n d s for dis
missal. "
T h e arbitrator ruled that e a c h griev
a n c e m u s t be c o n s i d e r e d o n its o w n merits,
w e i g h i n g the capabilities of e a c h of the grievants against the standards of ability a n d p h y s
ical fitness set b y the m a j o r i t y of m a l e e m
ployees o n the particular job.
T o justify the
t e r mination of e a c h of the w o m e n , the a r b i
trator said, the c o m p a n y m u s t be able to
p r o v e substantial differences in p e r f o r m a n c e .
T h e s e w o m e n w e r e being discharged, the
arbitrator held, not m e r e l y laid off, a n d
’bince disch a r g e is a m u c h m o r e drastic step
than layoff, it is obvious that c o n siderably
m o r e substantial differences in ability a n d
physical fitness a r e required to justify a dis
charge, particularly w h e n n o net reduction in
force is c o n t e m p l a t e d . "
A p p l y i n g the "relatively equal" test
to e a c h individual case, the arbitrator granted
25 of the g r ievances a n d denied 38, the r e
m a i n d e r being w i t h d r a w n b y the u nion before
the final decision was rendered.
O t h e r Seniority Rights
A number
of additional e m p l o y e e
rights relating to seniority w e r e pointed out
b y the arbitrators in the various decisions
reviewed.
S o m e of these e m p l o y e e rights
a r e listed below:
T h e right to a vacancy, the seniority
factors being equal, a c c r u e s to the m a n
w h o is available at the t i m e the v a c a n c y
occurs. "Availability is a n essential a n d
basic e l e m e n t in a p r o m o t i o n , for w i t h
out it, the seniority provisions of the
a g r e e m e n t b e c o m e meaningless."
A n e m p l o y e e m a y c h o o s e to take a
layoff rather than b e forced to take a
d o w n g r a d i n g , provided, h o w e v e r ,
that
the e m p l o y e e is not n e e d e d in the l o w e r
rated job.
T h e b u r d e n is o n the c o m p a n y of r e
calling m e n f r o m layoff in the p r o p e r
seniority order.
A n e m p l o y e e w h o quits d o e s not r e
tain a n y seniority recall rights.
"Such
rights a r e r e s e r v e d only to o n e w h o s e
e m p l o y e e status continues in effect. "
T e m p o r a r y jobs outside the c o m p a n y
m a y b e a c c e p t e d during the p e r i o d of lay
off without affecting the laid-off e m
ployees* seniority rights.
A n e m p l o y e e with seniority status
o n leave f r o m his job has a right to r e
turn to a particular classification r e
gardless of w h e t h e r the particular a s
s i g n m e n t within the classification w h i c h
h e h a d at the t i m e h e left w a s filled o n
a t e m p o r a r y or p e r m a n e n t basis.
O t h e r Seniority P r o b l e m s
Seniority Units
Failure of the union a n d the c o m p a n y
to r e a c h a written a g r e e m e n t with respect to
the particular seniority unit relating to the
job involved led to a n u m b e r of g r i e vances
w h i c h h a d to be settled b y arbitration.
T h e seniority unit clause of the c o n
tract, Article X, Section 2, of the 1947 a g r e e
m e n t , p r o v i d e d as follows: " T h e units within
w h i c h the seniority rules set forth in this
Article shall apply shall b e those w h i c h h a v e
b e e n or shall f r o m t i m e to t i m e be m u t u a l l y
a g r e e d to in writing b y the M a n a g e m e n t ' s
Represe n t a t i v e a n d the U n i o n at the r e s p e c
tive Plants a n d W o r k s . " 3
In m a n y
cas e s w h e r e n o written
a g r e e m e n t h a d b e e n m a d e with respect to the
seniority unit, the arbitrators d e c i d e d that
past practice m u s t b e u s e d to d e t e r m i n e the
appropriate unit.
This past practice rule
w a s b a s e d o n Article II, Section 3, of the
a g r e e m e n t w h i c h read, "If the M a n a g e m e n t
at a n y Plant or W o r k s shall c h a n g e or e l i m i
nate a n y local practice or c u s t o m n o w in
effect at said Plant or W o r k s a n d not c o v e r e d
b y this A g r e e m e n t , a n E m p l o y e e affected b y
s u c h c h a n g e m a y file a g r ievance with r e
spect thereto. . . . "
T h e principle w a s set
forth in a c a s e in w h i c h the grievant w a s
d e m o t e d to a position in a n other operating
unit.
This, the u m p i r e found, w a s in viola
tion of past practice w h i c h w a s for seniority
to be applied in e a c h operating unit. In stat
ing the principle of past practice the arbi-
3
Previous contracts did not provide for
agreement "in writing" with respect to seniority
units.
29
trator said, ". . . if a seniority unit h a s b y
a c o u r s e of past action b y the C o m p a n y b e e n
followed b y it with respect to a sufficient
n u m b e r of e m p l o y e e s so that with it, a c u s
t o m or practice has ther e b y env o l v e d a n d
c o m e into effect, s u c h seniority unit practice
or c u s t o m m u s t b e consistently so p u r s u e d
b y the C o m p a n y with respect to all of the
other e m p l o y e e s involved in that unit so e s
tablished b y it, unless a n d until a c h a n g e of
s u c h established unit is justified a n d so p r o v e d
b y the C o m p a n y . . . . "
Pointing to the desirability of having
the parties r e a c h a written a g r e e m e n t o n the
seniority unit, the arbitrator said, "Seniority
unit d e t e r m ination should not b e left to past
practice.
T o d o so is only to invite dispute
a n d d i s a g r e e m e n t a n d the h a z a r d that if there
b e n o seniority unit past practice or c u s t o m
in a particular case, the e m p l o y e e s * a g r e e
ment
seniority rights m a y b e prejudiced
thereby. . . . "
Seniority w a s not plantwide, e v e n
in the a b s e n c e of a g r e e d u p o n seniority units,
the arbitrators held.
In a c a s e w h e r e a n e w
d e p a r t m e n t h a d b e e n set u p a n d n o a g r e e m e n t
h a d b e e n m a d e with respect to the seniority
unit a dispute a r o s e o v e r the filling of v a
cancies.
T h e arbitrator pointed out that in
this c a s e past practice could not b e u s e d as
a guide a n d that there w a s "nothing in the
A g r e e m e n t that could possibly b e c o n s t r u e d
to require the application of plant-wide s e n
iority in the a b s e n c e of a g r e e d - u p o n seniority
units. . . . "
In another case, w h e r e four
e m p l o y e e s in Seniority Unit 4 w e r e d e m o t e d
to L a b o r e r s in Seniority Unit 1, a n d four L a
b o r e r s in the latter unit w e r e displaced, the
latter filed grievances. "Article X, Sections
1 a n d 2, called for the determi n a t i o n a n d
application of seniority rights *within* the
a g r e e d seniority unit a n d not o n a n y plant
w i d e seniority basis, w h i c h is essentially
w h a t the parties did here.
L e n g t h of service
cannot cut a c r o s s seniority units, " the a r b i
trator stated.
In several c a s e s the arbitrators h a v e
held that past practice with respect to s e n
iority units w a s n o longer effective w h e n
units w e r e a g r e e d to in writing. ". . . s u c h
local seniority unit practice continues only
until a seniority unit h a s b e e n a g r e e d to in
writing b y the parties as c o n t e m p l a t e d b y
a n d required b y Article X, Section 2.
Once
they h a v e established s u c h m u t u a l l y a g r e e d
written seniority unit, then s u c h local s e n
iority unit practice m e r g e s into the n e w s e n
iority unit a g r e e m e n t a n d n o longer continues
in effect thereafter. . . . "
Posting of V a c a n c i e s
Posting of vacancies w a s required
u n d e r Section 8, Article X of the 1947 B e t h
l e h e m contract w h i c h r e a d as follows: " W h e n
a v a c a n c y (other than a t e m p o r a r y vacancy)
in a n y job in a seniority unit shall
occur
w h i c h is to b e filled b y p r o m o t i o n , the M a n
a g e m e n t shall, so far as shall be practicable,
post a notice of s u c h v a c a n c y in the d e p a r t
ment. "
Posting w a s requ i r e d only for p e r
m a n e n t vacancies.
Notice could
b e po s t e d
before or after the v a c a n c y w a s filled.
The
p u r p o s e of posting, the arbitrators h a v e held,
w a s to assist in the administration of the
seniority provisions of the contract a n d to
allow for possible complaints.
"Its basic
p u r p o s e a n d interest is to afford all e m
ployees within the seniority unit in w h i c h a
n o n t e m p o r a r y job v a c a n c y oc c u r s r e a d y k n o w l
e dge of the o c c u r r e n c e of s u c h v a c a n c y so
that they m a y h a v e full opportunity to assert
their unit seniority rights to s u c h v a c ancy.
T h e posting, in a n d of itself, a n d without r e
g a r d to the existence of a job v a c a n c y o p e n to
c l a i m b y e m p l o y e e s in the applicable s e n
iority unit is certainly not the p u r p o s e of
this Section 8. . • ."
Variations of Seniority R u l e for
T e m p o r a r y a n d N e w Jobs
In the filling of t e m p o r a r y jobs,
length of service w a s a l m o s t a l w a y s the d e
ciding factor.
T h e 1947 B e t h l e h e m contract
clause relating to the filling of temporary
vacancies r e a d as follows:4
"In the filling
of a t e m p o r a r y v a c a n c y within a seniority
unit, the C o m p a n y shall, to the greatest d e
g r e e that shall b e consistent with efficiency
of the operation a n d the safety of E m p l o y e e s ,
fill the v a c a n c y with the E m p l o y e e having
the greatest continuous length of service in
the seniority unit or o n the particular turn
in s u c h unitin w h i c h the v a c a n c y shall occur."
T h e application of the t e m p o r a r y va
c a n c y rule w a s illustrated in the c a s e w h e r e
a t e m p o r a r y v a c a n c y o c c u r r e d in the position
of M o t o r Inspector.
W , with less continuous
e x p e rience than B, w a s p r o m o t e d to the t e m
p o r a r y vacancy.
B c o n t e n d e d that he should
h a v e b e e n given the t e m p o r a r y a s s i g n m e n t
as M o t o r Inspector in p r e f e r e n c e to W .
Both
m e n w e r e Electrical R e p a i r m e n H e l p e r s in
the mill.
4
There was no specific provision for the
filling of temporary vacancies in the previous
contracts.
30
T h e c o m p a n y a r g u e d that the p o s i
tion of M o t o r Inspector w a s v e r y important,
bei n g responsible for the m a i n t e n a n c e of all
electrical e q u i p m e n t in a n a s s i g n e d area*
Since the position w a s during the night turn,
hi g h e r supervision w o u l d not b e available to
p r o v i d e s o m e assistance to the M o t o r Inspec
tor in e m e r g e n c i e s * Failure to p e r f o r m p r o p
erly the job, the c o m p a n y contended, could
result in serious delays in production, loss
of steel or safety h a z a r d s for other e m p l o y
ees*
H e n c e , it w a s essential to a s sign the
best qualified m a n , W , in o r d e r to b e " c o n
sistent with the efficiency of the operation
a n d the safety of the e m p l o y e e s . "
In his decision, the arbitrator point
e d to the distinction w h i c h the contract m a d e
b e t w e e n the filling of p e r m a n e n t a n d t e m
p o r a r y vacancies*
Ability a n d physical fit
n e s s w e r e the p r i m a r y criteria to be applied
in the c a s e of p e r m a n e n t vacancies, but c o n
tinuous service w a s m a d e the p r i m a r y factor
in the filling of t e m p o r a r y vacancies*
". • •
length of service m a y b e ignored only in
those exceptional c a s e s w h e r e the efficiency
of the operation or the safety of e m p l o y e e s
w o u l d b e e n d a n g e r e d b y assigning
the e m
plo y e e with the longest service. . . •
Thus,
it is not n e c e s s a r y for the longest
service
e m p l o y e e to b e the m o s t able e m p l o y e e , or
e v e n to h a v e ability relatively equal to that
of a n y other contender, in o r d e r to b e quali
fied for a t e m p o r a r y a s s i g n m e n t *
H e need
h a v e only e n o u g h ability to p e r f o r m the job
in question without a substantial reduction in
overall efficiency a n d without the creation of
unsafe conditions*11 In the c a s e r e v i e w e d the
arbitrator could find n o evidence w h i c h m i g h t
establish a reaso n a b l e p r e s u m p t i o n that ef
ficiency m i g h t h a v e suffered or that safety
h a z a r d s m i g h t h a v e b e e n created if B w e r e
given the t e m p o r a r y a s s i g n m e n t instead of W ,
a n d B*s gri e v a n c e w a s granted*
T e m p o r a r y a s s i g n m e n t s w e r e ta b e
filled b y senior m e n , h o w e v e r , only insofar
as it w a s practicable for the c o m p a n y to d o
so.
T h u s in a c a s e w h e r e a n e m p l o y e e w a s
not given a t e m p o r a r y a s s i g n m e n t in a higher
rated job b e c a u s e there w a s n o t e m p o r a r y
r e p l a c e m e n t available for his job, the a r b i
trator held the c o m p a n y W a s not obliged to
d o so.
R efusal to acce p t a n offered t e m
p o r a r y a s s i g n m e n t did not affect the p r o m o
tional status for p e r m a n e n t positions of s e n
ior e m p l o y e e s .
A grievant w a s p a s s e d o v e r
for p e r m a n e n t p r o m o t i o n as C r a n e m a n in
favor of another e m p l o y e e w h o h a d refused
s u c h t e m p o r a r y a s s i g n m e n t s * T h e arbitrator
held that refusal of the t e m p o r a r y a s s i g n
m e n t s did not disqualify the successful e m
ployee.
" T h e r e is a clear-cutprovision for
the filling of t e m p o r a r y v a c a n c i e s , n the a r b i
trator stated*
f,N o t h i n g in that provision d e
fines relative rights of e m p l o y e e s conditional
u p o n accepting or refusing t e m p o r a r y a s s i g n
m e n t s . 11
T h e s a m e seniority rules applied in
the filling of n e w l y created jobs.
In s u c h
c a s e s there w a s a d d e d difficulty in deciding
"relative ability" for the senior a n d junior
m e n b e c a u s e there w a s n o p r e c e d e n t in the
p r o g r e s s i o n of jobs.
In o n e case, 6 A s s i s t
ant E n g i n e e r s in the P o w e r h o u s e D e p a r t m e n t
protested the p r o m o t i o n of 3 junior m e n to
T u r b o - B l o w e r En g i n e e r s .
T h e union h a d
a r g u e d that the c o m p a n y w a s obligated to
give the senior m e n a trial testing pe r i o d
in these n e w l y c r eated jobs.
The company
contended, ~ a n d the arbitrator agreed, that
the principal issue w a s ability to p e r f o r m *
L e n g t h of service w a s of lesser i m p o r t a n c e
since it w a s not a c q u i r e d in a position i m
m e d i a t e l y inferior to the job in question, the
job ha v i n g b e e n n e w l y created*
O n the basis
of a r e v i e w of the b a c k g r o u n d a n d e x p e r i e n c e
of all the m e n involved, it a p p e a r e d to the
arbitrator that the m e n with the greater abil
ity h a d b e e n selected for the p r o m o t i o n *
PART
IV —
W A G E
RATES
AND
P r o c e d u r e s for establishing a n d
c h a n g i n g h o u r l y or incentive rates a n d job
classifications, a n d the c i r c u m s t a n c e s u n
der w h i c h disagreements mi g h t b e c o m e sub
ject to arbitration, w:ere fairly specifically
stated in the a g r e e m e n t s .
Interpretation
of the contract on these points generally
did not p r e s e n t a serious p r o b l e m for the
arbitrators.
Rather, the i m p o r t a n t p r o b
l e m s revolved about the e s tablishment of
the facts a n d the application of the contract
o n the basis of the facts developed.
While
subjective j u d g m e n t , to s o m e extent, m u s t
a l w a y s b e a n e l e m e n t in resolving disputes
o v e r job classifications a n d w a g e
rates,
the a c c u m u l a t i n g exper i e n c e of the parties
p r o v i d e d a n increasing n u m b e r of guides.
Nonetheless, the disputes o v e r w a g e rates
a n d job classifications g a v e to the arbitra
tors considerably less s c o p e for defining
principles of e m p l o y e r - e m p l o y e e relation
ships or for applying principles of equity
found b y e x p e rience to b e acceptable to both
parties than w a s the c a s e in the types of
griev a n c e s p r e v iously discussed.
P r i o r to the adoption of the A g r e e
m e n t o n Elimination of W a g e R a t e Inequities"
in 1947, the ho u r l y rate structure in the
steel plants of B e t h l e h e m Steel C o m p a n y
w a s highly c o m p l e x .
A l t h o u g h it did not
a t t e m p t to c o v e r all w a g e p r o b l e m s , the
1947 a g r e e m e n t o n w a g e structure w o r k e d
out with the S t e e l w o r k e r s w a s a n imp o r t a n t
m i l e s t o n e for industrial relations in the
company.
W i thin the a r e a c o v e r e d b y the
n e w plan, notably job classifications a n d
h o u r l y rates, the w o r k of the arbitrators
in the c a s e s that a r o s e w a s generally s i m
plified.
B e c a u s e of this basic c h a n g e in
the m e t h o d of w a g e determination, the p e r i
o d prior to 1947 is c o n s i d e r e d apart f r o m
the later p e r i o d in the analysis that fol
lows.
Attention is f o c u s e d m a i n l y on the
arbitration cas e s arising after the adoption
of the m o r e rationalized job a n d w a g e struc
ture in 1947,
Wage
Grievances,
1942-47
W a g e rate inequalities b e t w e e n plants
a n d within plants h a d long b e e n a p r o b l e m in
the steel i n dustry.1
L a c k of s ystematic job
classification h a d resulted in a t r e m e n d o u s l y
c o m p l i c a t e d h o u r l y rate structure.
Job s in
the steel industry w e r e e x t r e m e l y diverse
1 See for example, "The Wage Rationaliza
tion Program in United States Steel, " by Robert
Tilove, Monthly Labor Review, June 1947.
(31)
JOB
CLASSIFICATIONS
a n d subject to continuous c h a n g e b e c a u s e
of technological c h a n g e s in e q u i p m e n t a n d
processes.
T h e variety of incentive w a g e
s y s t e m s a n d other m e t h o d s of w a g e p a y
m e n t contributed to the c o m p l e x i t y of the
w a g e structure.
T h e entire p r o b l e m w a s
m a g n i f i e d during the w a r per i o d with the
increase in production
and employment,
c h a n g e in products, a n d w a g e controls.
Grievances
relating to intraplant
w a g e inequities, p e r m i t t e d u n d e r the 1942
contract,
became
a serious p r o b l e m in
B e t h l e h e m during the w a r , as in the steel
industry generally. T w o m e t h o d s w e r e p r o
vided in the 1942 contract for c h a n g i n g rates
to m e e t
specific situations.
Article IV,
Section 3, p r o v i d e d a p r o c e d u r e for adjust
ing individual intraplant inequities a l r e a d y
in existence.
A c h a n g e in job rate m i g h t
also be justified u n d e r Article V, Section 1,
if on e of five o c c u r r e n c e s c h a n g e d the c o n
tent or conditions of the job.
U n d e r the w a g e inequity provisions
(Article IV, Section 3), c h a n g e s in w a g e
rates m i g h t b e m a d e for individual jobs
" b e c a u s e s u c h w a g e rate is u n r e a s o n a b l y
l o w or, u n r e a s o n a b l y high" c o m p a r e d with
other individual w a g e rates in effect for
similar jobs within the s a m e plant.
E m
ployees m i g h t initiate a request for a c h a n g e
in rates in s u c h c i r c u m s t a n c e s b y follow
ing the griev a n c e p r o c e d u r e of the contract.
A p r e s c r i b e d p r o c e d u r e w a s also available
for m a n a g e m e n t to initiate a c h a n g e in in
dividual w a g e rates b y giving the e m p l o y e e
involved written notice
of the p r o p o s e d
change. If objection w a s taken b y the e m
ployee affected, he could u s e the g r ievance
p r o c e d u r e to protest the change.
C h a n g e s in rates as a c o n c o m i t a n t
of c h a n g e s in the job situation w e r e c o v
e r e d in Article V.
M a n a g e m e n t might es
tablish a n e w rate or adjust a n existing
rate, if thought n e c e s s a r y or desirable, b y
following p r e s c r i b e d p r o c e d u r e .
An e m
p l oyee m i g h t initiate a g r i e v a n c e if, b e *
c a u s e of a c h a n g e in job content or b e c a u s e
m a n a g e m e n t h a d not c o m p l i e d with the e s
tablished p r o c e d u r e , h e believed his w a g e
rate h a d b e c o m e " u n r e a s o n a b l e a n d unfair."
D u r i n g the d e c a d e c o v e r e d b y this
study, the greater part of the B e t h l e h e m
arbitration c a s e s dealing with w a g e rates
a n d job classification related to "inequities"
u n d e r Article IV, Section 3, of the 1942
a g r e e m e n t , or, to a lesser extent, to griev-
32
ances protesting a lower rate or requesting
a higher rate because of changes in job
content as permitted by A rticle V ,
The numerous wage rate grievances
arising from problem s of job and employee
classification and the general dissatisfaction
resulting from the complicated hourly rate
structure in the steel industry added to the
difficulties of wage stabilization during World
War II.
In November 1944, the National
War Labor Board directed the company and
the union, and other steel companies, to nego
tiate for the elimination of existing intraplant inequities and a reduction in the num
ber of job classifications.
Having established negotiations for
a comprehensive review of the wage rate
structure, the company and the union om it
ted the wage inequity provisions (Article IV,
Section 3 of the 1942 agreement) in the 1945
agreem ent.
Individual wage rates were
thereby stabilized by the agreem ent, sub
ject only to changes of the type provided
for in A rticle V of the 1942 agreem ent, or
such changes as might be made pursuant
to the Directive Order of the National War
Labor Board.
The number of wage cases
reaching arbitration, and presumably the
number of wage grievances, declined dur
ing the term of this agreem ent, freeing the
parties for the extensive collaboration and
negotiation required in the establishment of
the job classification and evaluation pro
gram .
The element of judgment in the
a rb itra to rs1 decisions was much m ore im
portant in deciding hourly rate disputes un
der the 1942 and 1945 agreements than in
the cases subsequent to the 1947 agreem ent.
Arbitrators in these early Bethlehem cases
did not have the benefit of an agreed-upon
Manual for Job Classification as a guide
and the sim plified structure negotiated by
the parties in 1947.
In interpreting such
standards of the contract as “unreasonably"
high or low, or “ unreasonable and unfair"
the arbitrators had little objective guidance
apart from the facts of the particular case.
Certain guides were developed by
the various arbitrators in these early ca se s,
either as interpretations of the contract or
as general matters of equity.
The general
principles of job evaluation were also availa
ble to the arbitrators.
The requirement of
the contract that the rate shall not be “un
reasonably" high or low compared with that
of a sim ilar job was interpreted to mean
that the difference in rates must be signif
icant. Minor or trivial differences were to
be ignored. A basic principle of wage equity,
observed by the arbitrators, was that great
er skill and increased effort should yield
increased earnings.
The job rate should be
determined independently of the qualifica
tions of the individual worker then in the
job.
Comparison of earnings between jobs,
the arbitrators held, should be made over
a representative period, allowing sufficient
time for a proper evaluation of the differ
ence between the rates or earnings.
Com
parisons should be made with all jobs of
sim ilar nature.
There must be an approxi
mate “ community of tasks and duties" in
the jobs compared, but complete equality
of jobs was not necessary.
These principles, which guided the
arbitrators through the m aze of thousands
of jobs and job rates during this period,
were also im plicit in the creation of the
job classification plan by Bethlehem and the
union.
The 1947 Job Classification
Plan
In ordering the rationalization of the
wage structure in the steel industry, the
National War Labor Board provided certain
“ guideposts" for the parties.
Negotiations
were to be directed toward a procedure
which would include these requirem ents:
(l) A sim ple and concise description of each
job was to be prepared; (2) jobs wore to be
placed in proper relationship to each other;
(3) classifications were to be reduced to the
sm allest practical number by grouping those
having substantial equivalent content; (4)
wage rates for the job classifications were
to be established in accordance with the
following guides:
(a) The amount of adjustment nec
essary to eliminate intraplant w age-rate
inequities may vary from plant to plant
among the various steel com panies. The
parties could take into account the wage
rate relationships existing in comparable
plants in the industry.
(b) Maximum increase perm issible
for any one company shall not exceed
an average of 5 cents an hour for all
employees covered by the Directive O r
der.
(c) Increases are to be made solely
for the purpose of eliminating
intraplant wage rate inequities.
33
(d)
The reduction of an out-of-line
scriptions contained in the manual "a s ap
plied to the normal requirements and av
wage rate shall not be so applied as to
erage conditions of the j o b .*1' The job class
reduce the wages of the present in
cumbents.
to which each job was assigned was deter
mined simply by the sum of the numerical
A Steel Com m ission was set up by
factors, rounded to the nearest whole num
the NWLB to a ssist the steel companies and
ber (see illustration on next page).
the union in carrying out the complex ra
tionalization program . The parties entered
Wage and Classification G rievances,
into studies and negotiations to carry into
1947-June T ?g2
effect the Board*s directive, and continued
this project after wage controls were te r
minated. The task at Bethlehem was com
Having reached a settlement on the
pleted and the agreement signed in April
wage structure, including the proper c la s s i
1947.
fication of all em ployees, the parties agreed,
in the 1947 contract, to maintain the level
Under the new program , all jobs
of wages (giving effect to the general wage
were classified into 30 job c la sse s with
increase) for the duration of the contract.
Grievances alleging a wage inequity were
hourly wage increments of 3 .5 cents be
no longer adm issible.
The wage rate for
tween c la sse s. In the amended contract of
each job classification was fixed in the con
1948 the number of job cla sse s was in
tract, and the classification of a particular
creased to 32, and wage increases as of
job might not be changed without a signif
the end of 1952 raised the differential in
icant change in the content of the job itse lf.
the standard hourly wage rate between the
Likewise, incentive rates might be changed
cla sses to 5 .5 cents.
only if there was a change in the nature of
the job.
During negotiations preceding the
agreement on the wage structure, the p a rties adopted the Manual for Job C la ssifica
Types of occurrences which could
tion of Production and Maintenance Jobs as
be the basis for a change in classification
the standard for classifying jo bs. The com
of jobs or incentive rates were listed in
pany prepared job descriptions and c la s s i
A rticle V , Section 1, of the 1947 agree
fied the various jobs, which were then p re
ment, which read a s fo llo w s:2
sented to the union for its endorsement.
Disputes over the classification of jobs were
The parties thereto recognize that
brought to the Steel Com m ission for settle
it may become necessary or desirable
ment.
from time to tim e at one or more of
the Plants or W orks that the Manage
The Manual for Job Classification
ment cla ssify new jobs or reclassify
provided a procedure for classifying jobs
existing jobs or adjust then existing
by analyzing, and assigning numerical values
incentive wage rates because of (a) the
to, 12 basic factors in the job. The 12 fa c
creation of new positions, (b) changes
tors were:
in equipment, (c) changes in manufac
turing p rocesses or in methods or
1.
Preemployment training
standards of manufacture of produc
2.
Employment training and ex
tion, (d) the development of new manu
perience
facturing p ro ce sses or methods, or (e)
Mental skill
3.
mechanical improvements made by the
4.
Manual skill
Company in the interest of improved
5.
Re sponsibility for m aterials
methods or products.
An existing job
Re sponsibility for tools and
6.
equipment
7.
Re sponsibility for operations
2 Article V, Section 1, in the 1947 agree
safety of
Re sponsibility for
8.
ment differed from that section in the 1942 and
others
1945 contracts in these respects: The first sen
Mental effort
9.
tence of the earlier contracts read "establish
10.
Physical effort
new rates or adjust then existing incentive wage
11.
Surroundings
rates, " instead of "classify new jobs or reclas
Hazards
12.
sify existing jobs or adjust then existing incen
tive wage rates"; the last clause of the section
A numerical value was assigned to
was not included in the earlier contracts. These
changes were desirable after the adoption of the
each of the above-mentioned factors for
Manual for Job Classification in 1947.
each job in accordance with the code de
34
H ow th e p o in t v a lu e w a s d e t e r m in e d
b e l o w f o r 1 o f th e 12 f a c t o r s — m a n u a l s k i l l .
fo r ea ch o f
th e f a c t o r s u s e d in th e c l a s s i f i c a t i o n o f
a p a r t ic u la r jo b i s
sh o w n
M A N U A L S K IL L
C o n s id e r th e P h y s i c a l o r M u s c u l a r a b i l it y an d d e x t e r i t y r e q u i r e d in p e r f o r m i n g a g iv e n j o b in c lu d in g th e u s e o f t o o l s ,
m a c h i n e s , an d e q u ip m e n t .
A
N u m e r ic a l
c la s s ifi
c a t io n
J o b r e q u i r e s a b i l it y t o :
C ode
U se o r d in a r y o r h e a v y t o o ls such a s
o r rou g h ta s k s , o r w h e re d e x te r ity
O p e r a t e s i m p le o n a n d o f f s w i t c h e s ,
H a n d le o r d i n a r y m a t e r ia l m a n u a lly .
U s e c h a in o r c a b l e s l in g s f o r s im p le
b a r s , w re n ch e s , s h o v e ls , h o o k s , e t c ., fo r p e r fo r m in g
and p a c e a r e n ot o f p a r t ic u la r im p o r ta n c e .
v a lv e s , and le v e r c o n t r o ls .
s i m p le
B ase
c r a n e h o o k in g .
B
U s e l a r g e w r e n c h e s , s l e d g e s , h a n d t o o ls ,
a n d h e a v y t o o l s at a n o r m a l p a c e f o r a v a r i e t y o f t a s k s .
U s e g a u g e s an d s m a l l t o o l s in a r o u t in e m a n n e r .
U s e t o r c h to p e r f o r m r o u g h cu ttin g w o r k .
O p e ra te v a r ia b le c o n t r o ls , su ch a s r h e o s ta ts , and l e v e r s , to c o n t r o l m o v e m e n t o f m a c h in e s o r p a s
s a g e o f m a t e r ia l t h r o u g h e q u ip m e n t w h e r e j o g g in g , f r e q u e n t r e g u l a t io n a n d p r e c i s i o n o f a d ju s t m e n t
is r e q u ir e d .
M a k e s i m p le a d ju s t m e n t a n d r e p a i r s t o m a c h i n e s a n d e q u ip m e n t .
M a k e s e t u p s t o e q u ip m e n t w h e r e th e u s e o f t o o l s a n d g a u g e s i s s i m p le a n d r o u t in e .
.5
C
U s e s e v e r a l h a n d t o o ls o r t r a d e s m a n ’ s t o o l s o n a s s e m b l y w o r k , s u c h a s la d l e l in in g , s i m p le c a r p e n t r y
o r p ip e f it t in g o r in m a k in g a d ju s t m e n t s t o m a c h i n e s o r e q u ip m e n t w h e r e c l o s e t o l e r a n c e s a r e r e q u i r e d .
P e r f o r m s i m p le g a s o r a r c w e ld in g .
U s e h a n d -c u t t in g t o r c h t o b u r n t o p r e c i s i o n la y o u t .
S e t up a n d o p e r a t e m a c h in e t o o l s f o r r o u t in e f a c in g , d r i l l i n g , m il l in g , e t c .
M a n ip u la t e c o n t r o l s o f c o m p l e x m a c h i n e s a t a r a p id p a c e in v o l v in g a h ig h d e g r e e o f c o o r d in a t io n .
P e r f o r m m a n u a l t a s k s s u c h a s p o s i t io n i n g , a s s e m b l in g , e t c . , a t a s t e a d y p a c e w h e r e a c c u r a c y a n d
d e x t e r i t y o f h ig h d e g r e e a r e r e q u i r e d .
1 .0
D
U s e t r a d e s m a n ’ s t o o l s in a w id e v a r i e t y o f d i f f i c u lt t a s k s in v o lv in g c l o s e t o l e r a n c e s .
F o r g e c o m p l e x s h a p e s w ith o u t r e s o r t i n g t o d i e s o r t e m p la t e s .
F in is h c o m p le x san d m o ld s , c o r e s , e t c .
1 .5
E
P e r f o r m d i f f i c u l t s h a p in g o r f o r m i n g t o c l o s e t o l e r a n c e s , w h e r e p r e c i s e m u s c u l a r c o n t r o l a n d d e l ic a t e
t o u c h a r e in v o l v e d , s u c h a s m a k in g a n d a s s e m b l in g v e r y s m a l l p a r t s , p r e c i s i o n in s t r u m e n t r e p a i r , e t c .
2 .0
S ou rce:
" A g r e e m e n t o n E li m in a t i o n o f W a g e R a te I n e q u i t ie s I n c lu d in g
M a n u a l f o r J o b C l a s s i f i c a t i o n o f P r o d u c t i o n a n d M a in t e n a n c e
J o b s , " B e t h le h e m S t e e l C o m p a n y a n d U n ite d S t e e l w o r k e r s o f
A m e r i c a , A p r i l 11, 1 9 4 7 , p p . 1 8 - 1 9 .
shall not be reclassified, however, un
le ss such changes or events shall alter
the requirements of such job as to
training, skill, responsibility, effort
and surroundings to the extent of a
whole numerical classification of 1.0 or
m ore.
Under Section 2 of A rticle V, man
agement could initiate a change in c la s s ifi
cation by following prescribed procedures
when one of the events specified in A rticle
V occurred.
The union was to be notified
of the proposed change and given an op
portunity to accept or reject it. If the new
rate was put into effect without union ap
proval, a grievance claim could be initiated
in accordance with the usual procedure.
Section 3 perm itted an employee to initiate
a job classification grievance if the require
ments of his job had been changed to the
extent of a whole numerical classification
of 1 .0 or m ore, bringing it into a higher
wage c la s s , by reason of any of the occur
rences specified in Section 1.
Section 4 of A rticle V provided that
if, because of any change or event speci
fied in Section 1, management considered
it desirable to establish a new incentive
rate, the new rate was to be established
in accordance with the indicated procedure.
An employee could initiate a grievance un
der Section 5 if he believed that "by reason
of any change or other event specified in
Section 1 of this A rticle which shall occur,
his incentive wage rate has become un
reasonable and unfair. . . . "
Section 6 of A rticle V declared that
the "purpose of the Com pany^ incentive
plans and incentive wage rates is to en
courage the achievement of maximum p ro
duction for the mutual benefit of the E m
ployees and the C om pan y."
When it was
mutually agreed that an existing incentive
35
plan or incentive wage rate should be changed
or a new incentive plan or new incentive
wage substituted for an existing plan or rate,
management could establish such plan or
rate in accordance with prescribed pro
cedure.
Where work was not paid for on
an incentive b a sis, management could e s
tablish a new incentive plan or new incen
tive rate when in its opinion the new plan
or rate would encourage production. Under
Section 7 the company could eliminate an
incentive plan when straight-tim e hourly
earnings of the employees affected fe ll be
low their standard hourly wage rate.
Thus the role of the arbitrator in
wage grievances was substantially circu m
scribed under the 1947 agreem ent.
The
arbitrator could find with a grievant that
his job was not properly classified, but the
rate for any other classification to which
the job might be reassigned was fixed by
the agreem ent.
Although the arbitrator
could set new incentive rates in cases a r is
ing out of changing job content, the agree
ment specifically withheld this authority
from the arbitrator where new incentive
rates had been established for a job p re
viously paid on a tim e-rated b a sis.
Job C lassification Grievances
Two m ajor criteria had to be con
sidered by the arbitrator in determining
whether a job classification was to be
changed. F irst, the nature or requirements
of a job must have been changed because
of the occurrence of one of the five events
specified in A rticle V, Section 1. Secondly,
and of m ore practical significance, the re
quirements of the job must have been sub
stantially altered by the event. Obviously,
if classifications were to be changed, up
ward or downward, for minor or insub
stantial change s a highly unstable wage
structure would result. Hence the contract
provided that the requirements of the job
must have changed to the extent of a whole
numerical classification of 1 .0 of m ore,
sufficient to bring the job into the next
cla ss.
Only a few of the job classification
grievances arising under the 1947 agree
ment satisfied both requirements of the con
tract and were therefore granted by the
arbitrator. In the case selected for illu s
tration, a grievance at Lackawanna was
initiated by the union after the company had
assigned Job C la ss 8 for the job of Theisen
and Precipitator Operator following the
of new equipment into the gas
Digitizedintroduction
for FRASER
cleaning division of the blast furnace de
partment.
The union claim ed that the job
should have been placed in C la ss 11.
New electric precipitators had been
added to the existing gas washers which
were at the tim e operated by the Theisen
O perators. The duties of operating the p re
cipitators were added to those perform ed
by the Theisen Operator and a new job title
nTheisen and Precipitator Operator" was
created to encompass both sets of duties.
There was no question raised over
management1s right to create the new job
or its procedure in classifying it.
Under
Section 1 of A rticle V management could
"c la s s ify a new job or reclassify an exist
ing one" when new equipment such as the
precipitators was introduced. Management
had notified the union of the contemplated
change which, being unacceptable, was taken
to arbitration. The issue here involved was
whether 6 of the 12 code values which the
company had assigned to the classification
factors of the manual were appropriate.
In considering the issue the arbi
trator proceeded to weigh the contentions
of each side in support of each of the codes
selected for the various factors. Since the
manual required a comparative analysis of
the job being classified with others whose
classification had already been agreed to,
each side chose a job which it considered
a fair standard of com parison for the new
job at Lackawanna.
Management assigned
code values for each of the 12 factors in
the new job sim ilar to those of A ssistant
Scrubber House Operator at Bethlehem.
Company experts had studied both jobs for
this purpose and found complete sim ilarity
in the factors relating to the two jo b s. The
union raised certain general challenges re
garding the comparison of these jobs, and
submitted the job of A ssistant Disintegrator
Operator at the Johnstown Plant for com
parison.
This choice, the arbitrator felt,
was questionable since there was some dif
ference in the factor codes assigned the
two jobs; company experts who studied the
Johnstown job had pointed out differences
in plant layout a s well as other intrinsic
job differences which affected the job.
Proceeding to a consideration of
the specific contentions offered to support
or challenge their respective codings of the
job in dispute, the arbitrator accepted the
company18 position regarding Factors 5, 8,
10, and 12, but accepted the union*s con
tentions on Factors 2 and 9.
36
The discussion of Factor 5, "R e sponsibility for M aterials, M illustrates the
arbitrator’ s reasoning in selecting the ap
propriate code which gives the numerical
value for each of the factors. In assigning
a code for responsibility for m aterials, he
pointed out, the degree of care which the
employee must exercise to prevent damage
to the m aterials he handles and the mone
tary lo ss potential in his failure to exert
such care must be considered.
Both p ar
ties agreed that $50 fairly represented the
maximum potential monetary costs of neg
ligence or e rro r. With regard to the degree
of care required, however, the company
assigned Code B, "ordinary care^" with a
point value of 0 .3 .
The union felt the re
sponsibility called for the use of "c lo s e
attention for part of the turn" with 0 .5
points.
In the arbitrator’ s opinion, the in
stallation of the precipitators did not m a
terially alter the duties with regard to re
sponsibility for m aterials.
The m aterials handled remain la rg e
ly water and gas in transit, over which
the operator exercises no direct atten
tion. The correct handling of the m a
terials is determined largely by gauges
and machines. The standard job of A s
sistant Disintegrator Operator at Johns
town does receive a coding of C (0 .5
points). But the Disintegrator Operator
perform s duties related to the actual
mixing of the blast furnace gas being
cleaned; this ’ responsibility for m a
te ria ls’ would seem to demand ’ close
attention for part of the turn’ when
mixing is under way, in contrast to the
cleaning operation as such. The form er
position of Theisen Operator as well as
the currently effective one of A ssistant
Scrubber House Operator at Bethlehem,
which is concerned only with gas clean
ing operations, carry a coding of B.
The latter position has duties related
to precipitators as well as Theisen
equipment. The new job at Lackawanna
would appear comparable and, so, prop
erly rated under Factor 5.
Employee Classification Grievances
A few of the classification cases
which reached arbitration are m ore proper
ly term ed "em p lo y ee " rather than "jo b "
classification. In such cases the employee
claim ed that he was performing the duties
of a higher rated job and was therefore en
titled
to the higher rate of pay.
Where such situations did not in
volve any change or occurrence specified
in Section 1 of A rticle V , the issue arose
regarding the arbitrator's authority to change
employee classifications. The question was
discussed by one of the arbitrators in a
case where an employee alleged he was p e r
forming substantially the duties of a L a
borer, but was classified as a Sweeper (a
lower rated job).
The arbitrator pointed
out that "there is an important difference
between reclassification of individuals and
the reclassification of jo b s.
The latter
function is reserved exclusively to the p a r
ties (with exceptions not relevant here ).
The form er, however, is clearly arbitrable
as an application of the established job c la s
sification scheme.
The M aster Agreem ent
specifically provides for the arbitration of
grievances involving the ’ application of the
provisions of this Agreem ent' (Article X I,
Section 2).
The provisions of the A g re e
ment on Elimination of Wage Rate Inequities,
dated April 11, 1947, are incorporated into
the M aster Agreem ent by reference in A r
ticle IV, Section 1 of the latter. It follows
that a claim like that of B is arbitrable.
He is not seeking to increase the Sweeper’ s
pay from the C lass 1 rate to the C la ss 2
rate; instead he claim s that he is actually
performing the duties of a Laborer, which
is already classified as a C la ss 2 J o b ."
Another type of employee c la s s ifi
cation grievance alleged that the employee
was im properly graded within the particular
craft or multiple rated job. An example is
the case of certain M achinists, classified
Grade B, who alleged they should have been
upgraded to Machinist, Grade A , or relieved
of certain Machinist, Grade A , work which
they claimed they were doing.
A s the umpire interpreted the union’s
viewpoint, the union’ s basic theory under
lying the grievance was "that there exists
three separate and distinct job cla ssific a
tions, each with its own specific work and
duties, a Machinist A , B, and C . "
If this
were so, argued the arbitrator, the answer
would be clea r.
" . . . For it is a funda
mental, and y es, an elementary principle
that an employee is entitled to the job c la s
sification that covers the work and duties
he is perform ing. . . (however) this sepa
rate classification theory goes completely
contrary to the job classification structure
agreed to by the parties and set forth by
them in their Manual and consistently fo l
lowed by them ever since it was first put
into effect . . . "
37
The manual, the arbitrator said,
was clear in setting up a single,
overall,
all-in clusive "c r a ft” classification for the
various jobs listed. The manual described
the craft job as one "that shall reflect the
duties which a fully qualified craftsman may
be called upon to perform in the depart
ment. " In line with this concept of "fu lly
qualified craftsm an ," the parties established
a single written description for this M a
chinist job, the arbitrator stated. The var
ious work and duties were not subdivided
and classified as Grade A , B, and C.
"How then is an employee to be
assigned to a particular grade within the
Machinist craft if not on any theory of c la s
sification based on the particular type of
Machinist work and duties he is perform
in g ?" the arbitrator asked.
The
answer
was also found in the manual, he indicated.
"E ach craftsman shall be assigned to the
appropriate grade on the basis of his p e r
sonal qualifications and a b ility ."
This the
arbitrator stated, meant but one thing— "that
upgrading must be based on the individual
employee* s qualifications and ability and not
on his particular machinist work, as such."
The manual further provided that any cra fts
man assigned to Grade C could, at regular
intervals of 1 ,04 0 hours of actual work in
the given craft, request and receive a de
termination of his qualifications and ability
and, if qualified, be assigned to the next
higher grade.
Basis for Denial of Classification
Grievances
Several of the wage classification
grievances reviewed were based on changes
in the duties of the job which the arbitra
tor found to have occurred prior to the
adoption of the agreement on the general
wage structure.
Such cases could not be
considered by the arbitrator since the agree
ment which the parties adopted in 1947
precluded the reconsideration of any job
classification agreed to, unless by mutual
agreement in writing.
An illustration is the case of two
furnace men in the 5 6 " cold strip m ill who
protested their rating because of alleged
changes in the job which led to an increased
volume of work of one type or another.
The arbitrator could not find any change
from the time the job was classified that
could be considered under A rticle V, Sec
tion 1. The furnaces were being developed
at the time of the adoption of the c la ssifi
and changes in duties had occurred
Digitizedcation
for FRASER
prior to this. The basis of dissatisfaction
was evidently in the fact that the men were
required to do m ore of the same or kindred
duties now than before the classification.
This, the umpire stated, " i s an issue upon
which I cannot p a s s ."
The m ost frequent basis for denial
was the finding by the arbitrator that the
change in duties was not significant in that
it failed to change the sum of the c la s s ifi
cation factors a whole numerical c la ssific a
tion or m ore.
In a case involving crane
men in the Annealing Section, the grievance
was that the increased height of the fur
naces had significantly changed the duties
of the job, thus justifying a higher c la s s i
fication. The furnaces were raised in height
by 18 inches.
The umpire could find no
evidence that the greater size of the fu r
nace required a significant change in duties.
The claim that the increased height gave
the cranemen le s s clearance and therefore
required a greater exercise of judgment was
refuted by the evidence that lim it switches
on the cranes virtually eliminated the p o s
sibility of damage to the crane. The claim
that the larger hoods in use were more
costly, thus increasing the value of F a c
tor 5 , "Responsibility for M a te r ia ls ," was
not relevant since there was no indication
of likelihood of damage to the hoods. The
larger size of the furnaces made Factor 7,
"Responsibility for Operations, " greater,
the union contended; but the union did not
deny the company* s statement that the size
of the units processed by cranes was not
relevant to their classification. Under F a c
tor 11, "Surroundings," the union contended
that the greater capacity of the cranes meant
that the craneman had to remain over the
furnace for a longer period and thus was
exposed to extreme heat for considerable
tim e.
However, the arbitrator found that
the crane cabs were well ventilated and the
exposure to heat was increased only slightly.
In the arbitrator* s opinion the union
had not "dem onstrated that the change in
equipment which occurred after the c la s s i
fication of the jobs has sufficiently altered
the requirements of those jobs to justify
their reclassification.
It is quite possible
that the men must now work harder than
they did in 1947, but the record does not
show any connection between this fact and
the criteria which the parties set forth in
their A g re em e n t."
This increase in workload, which
was the basis for job classification griev
ances in several other cases, was not suf
ficient by itself to justify the grievance, it
38
was held.
Increased production had to be
attributable to one of the changes specified
in A rticle V and must have resulted in a
change in the job factors of at least a whole
num erical classification.
Incentive Rate Grievances
Incentive rates were subject to more
change than the classification of employees
or jo bs, with the result that incentive rate
grievances were somewhat m ore frequent.
A large proportion of the Bethlehem pro
duction jobs were paid on an incentive b a sis.
Such plans were formulated taking into a c
count the product being made, the type of
operation perform ed, and the time required
to process a unit of production.
Incentive
rates included ’’p ie ce " rates, tonnage rates
and other form s of bonus payments.
In setting an incentive rate the
usual procedure was to establish a standard
production rate based on a tim e study of the
operation.
Production above the standard
was paid for at the incentive rate, while the
employee was guaranteed the basic hourly
rate for his job classification.
A s in the case of job cla ssific a
tions, incentive rates in general were sta
bilized for the duration of the contract by
the provisions of A rticle IV. Existing rates
were to be maintained without variation,
except as permitted under A rticle V when
changes in equipment or operations changed
the nature or requirements of the job. A c
cording to the agreem ent, management had
virtually unlimited rights to bring opera
tions under incentive plans where only time
rates had form erly applied.
Four m ajor types of incentive griev
ances reached arbitration during the period
covered by this study.
The events giving
rise to these grievances involved situations
(a) where management modified an incentive
rate to take account of one or more of the
changes listed under Section 1, A rticle V,
(b) where an employee claimed that because
of a Section 1 change in his job, the old
incentive rate had become "unreasonable
and u n fa ir ," (c) where management estab
lished a new incentive plan or rate for work
form erly paid on a time b a sis, and (d) where
the definition of incentive work was in d is
pute.
C ases illustrating the arbitrator's
handling of each type of grievance are r e
viewed in the following pages.
L o ss of earnings.— The usual griev
ance in incentive rate cases was that earn
ings under the new rate established in re c
ognition of a change in the nature of the job
under Section 1 were not as large as those
under the old rate. This raised a question
under Section 4(a) of A rticle V which stated
that the new rate should "b e in equitable
relationship to the incentive wage rate which
it replaced and provide equitable com pensa
tion. "
In one illustrative case the com
plainants were Wire Drawers on the 8-inch
and 12-inch wet wire-drawing m achines.
These workers were being paid on an in
centive basis involving a rate fixed for each
decim al size of wire applied to the amount
of wire drawn by each W ire D raw er.
F rom the date of the establishment
of the original incentive rates until about
the middle of 1950, the coating on the wire
was known as Apex and L im e.
About the
middle of 1950 the company began to ex
periment with a new type of wire coating,
known by its trade name of "F o s c o a t." The
new coating resulted in a chemical reaction
with the wire surface, creating a crystalline
surface and a m ore permanent coating than
the form er method which provided only a
mechanical adhesion to the wire. The F o s
coat coating, management found, eliminated
much of the inadequacies of the Apex and
Lim e coating. L ess cleaning room handling
and reduced wire tangling resulted.
In
creased ru st-resistan t qualities and other
improved drawing quality of the wire were
also obtained, together with longer die life
per unit of production and higher machine
speeds.
Because of the changes in methods
and p rocesses of production, management
proceeded to retime the wire drawing oper
ations under the new Foscoat process and
to adjust the Wire Drawer incentive rates
to reflect these new operating conditions and
the increased production resulting there
fro m .
This action, management claim ed,
was within its rights under Section 4(a) of
A rticle V .
The company insisted that the
increased production of wire which occurred
after Foscoat was put into use was due to
the improved wire drawing conditions and
the increased machine speed, and not be
cause of increased employee effort. If there
was a minimal increase in employee effort,
the company contended, it was adequately
compensated for by the increase in the in
centive wage standard used in computing
the new rate.
The union's'position, on the other
hand, was that the new process had not
m aterially improved the quality of the wire
nor affected a saving in production tim e.
Various Wire Drawers testified that they had
39
incurred a substantial lo ss in earnings un
der the new incentive rate schedule. A s a
result of the increased speed of the m a
chines, there was increased danger in the
work, which was not reflected in the new
rate. M ost, if not all of the increased pro
duction, the union claim ed, was due to in
creased effort on the part of the em ployees.
It was the arbitrator* 8 opinion that
there was no doubt that a "change or event”
of the kind specified in Section 1 of A rticle V
had occurred. The company was therefore
within its rights in proceeding to make ap
propriate adjustments of the incentive rates
in effect prior to such change. The issu e,
accordingly, resolved itself to one of deter
mining whether the rate adjustments which
management made "m e e t the standards and
limitations laid down by the Agreem ent for
the adjustment of incentive rates” (Sec
tion 4(a)).
The requirements of the contract
were that "Management shall develop such
new incentive wage rate in accordance with
the usual practice at the tim e in effect with
it for establishing incentive wage rates at
such Plant or Works and on the principle
that the new incentive wage rate shall, giving
due effect to the change or other events by
reason of which the new incentive wage rate
shall have been established, be in equitable
relationship to the incentive wage rate
which it replaced and provide equitable
compensation. . . . ”
The first requirement, that the new
rates be developed in accordance with usual
practice, was found by the arbitrator to have
been followed by the company.
The basic
theory on which the new rates were set was
essentially the same as that used in setting
the original rates. This involved the setting
of a rate per 100 pounds for each size of
wire at the new machine speeds, with c e r
tain allowances for inherent delays, as de
termined from time studies.
The remaining consideration was,
therefore, whether the "due effect" and
"equitable relationship" requirement of Sec
tion 4(a) of A rticle V had been followed.
A s stated by the same arbitrator in an ear
lier case:
This *due effect1 clause sets up a
m ost important standard for these E q u i
table* te sts, without which they may
well be too vague and general for clear
and definite application. In substance,
what this *due effect* clause means is
that the adjustment of the old rate must
be lim ited only to the increased pro
Digitized for duction
FRASER caused by and attributed solely
and directly to the *change or event*
involved.
In other words, it must be
only the production (earnings) windfall
caused by the Section 1 change or event
(be it in favor of the Company or of
the Union, as the case may be) that
may be eliminated and nothing e lse .
Then and only then are these 1equitable*
tests of A rticle V satisfied and the new
rates truly in conformance with the
Agreem ent stabilization requirem ents.
Should the rate adjustment go beyond
that and discount accumulated employee
skill, knowledge and experience, or fail
to maintain the production-ear ningseffort relationship which existed under
the incentive rates in effect prior to
the Section 1 change or event, then the
adjusted rates fail to give *due effect*
and with it, fail to meet the *equitable*
tests of the Agreem ent, including the
basic wage stabilization mandates of
A rticle IV .
Proceeding to examine the evidence
presented by both sides, the umpire found
that the new Foscoat wire coating did p e r
mit increased speed of the machines and
greater production of w ire. The safety fa c
tor, introduced as an issue by the union,
was not relevant in setting the incentive
rate, the arbitrator felt. However, he did
not agree with the company that all of the
increased production was chargeable to in
creased machine capacity or to improved
die life and wire quality. Some of thf in
creased production was attributable to in
creased employee effort. Undoubtedly this
was m inor, but " i s it so negligible or *de
minimus* as the company claim s it to be
as to warrant it being d isregarded?" T his,
the arbitrator concluded, was not so. There
was an extra handling of bundles, the total
of which had definitely increased under the
adjusted rate schedule. The W ire Drawers
operated three m achines, thus making the
total number of extra bundles three tim es
the increase per machine. The arbitrator
held that due effect must also be given to
the closer attention to the machine which
was required because of the greater speed
as well as other extra machine duties.
Taken together "the added work and effort
does reach a point where, though it be minor
with relation to the total increased produc
tion, is nonetheless sufficient to be a c
counted for in the rate adjustm ent."
Although the element of increased
employee effort was sm all, the umpire
stated, it was sufficient to be considered
in the rate adjustment. Accordingly, after
40
reviewing the evidence, wage data, and time
studies, the umpire concluded that rates
should be adjusted to perm it an increase of
5 cents per hour in the Wire Drawers* in
centive earnings.
U nreasonable and unfair 11 ra te s. —
While em ployees, under Section 4, could
protest a new rate instituted by manage
ment, they could, under Section 5, claim
a grievance if, following a Section 1 event,
their old incentive rate had become ’’un
reasonable and unfair.” A grievance of such
a nature was filed by a Weighman Helper in
the 134-inch plate m ill.
The grievant*s
complaint, on behalf of him self as well as
other employees in the m ill, was that the
volume of ’’ strip” plates (those le ss than 36
inches in width) had increased and would
increase still m ore.
This increase had
added to the handling work of the employees
involved and had also caused production
delays, all of which caused a lo ss of in
centive earnings to the grievant and his
cow orkers.
He asked for additional com
pensation for the increased work and that
a special rate be established for the strip
plates.
The company insisted that the rates
were in effect for many years prior to the
agreem ent, and that none of the changes on
events called for in A rticle V occurred to
give the umpire authority to change the rate.
P rocessing o f ” strip1' plates was not a r e
cent development, the company stated, nor
had the quantity substantially increased.
Issue was also taken with the griev
ance claim that a substantial reduction in
earnings had occurred since the increase in
strip processing.
Earnings data demon
strated that earnings of the various p o si
tions remained relatively stable, with no
decrease as alleged by the grievant.
The
company also denied that the processing of
these strip plates caused any production de
lays and consequent reduction of earnings.
On the contrary, if the steel were not used
in these strip plates it would otherwise be
scrapped, which would have meant le ss pay
tonnage yield. Additional benefit accrued to
the em ployees, the company maintained,
since they received the ” 50 percent pay ton
nage” on all strip plates of 5/i$ inch or
under.
In considering the m erits of the
case the umpire stated that it was clear
in his opinion that the request was one for
a change of an existing wage rate, hence
subject to the requirements of Section 5.
These rates had long been applied to plates
of various dim ensions, both large and sm all,
including the com plained-of ” strip1' plates.
The only "e x tr a ” included in the existing
wage rate was the 50 percent tonnage allow
ance for plates of */i 5 inch width or le s s .
The evidence failed to show, the arbitrator
concluded:
. . . that any change or event with
in the true meaning and intent of A r
ticle V, Section 1, did occur on or prior
to the grievance filing date . . . The
fact that the volume relationship between
the sizes of the plates processed, in
cluding these 1 strip 1 plates, m ay, from
time to tim e, have varied somewhat is
not sufficient to constitute a Section 1
change or event.
F o r, innate in the
very nature of the existing incentive
wage rate is that plate sizes will and
do vary.
Indeed, the rates must have
been originally established on this very
prem ise, recognizing and accepting the
inevitable variations in sizes and amounts
of plates and with it, the administrative
necessity that the wage rates not be
changed with each and every change
and variation in plate size relationship.
Switching of rates as the volume of r e
lationship of plate sizes changes if fo l
lowed here would prevent the sound
practical application of an incentive rate
plan to this operation in the m ill . . .
In light of the nature of the existing
incentive wage rates and the com para
bility of earnings lev els, the proof must
be abundantly clear that the variations
in plate sizes are of that substantial
degree in amount and continuity as to
qualify it as a Section 1 change or event
and with it, perm it of the application
of Section 5. Such proof, to repeat, has
not been adduced here . . .
In another Section 5 case the arbi
trator found that a Section 1 change did
occur, making the issue the question of
whether the rate had become ’’unfair and
unreasonable.” In Decem ber 1950 the com
pany installed a new row of automatic pits
(No. 41) and converted one of the row pits
(No. 20) from manual to automatic opera
tion. The other 28 manually operated pits
in the Blooming M ill Department continued
without change. The employees had a right
to arbitral review of their rate, the umpire
held, but any adjustment must be lim ited to
the effect of the change on the rate. ’’And
to the extent only that the N os. 20 and 41
pits did affect the incentive wage rates of
the M ills so as to make them 1 unfair and
unreasonable* may they be a dju sted.”
41
The effect of the N os. 20 and 41
soaking pits was not the same for the dif
ferent job classifications in the m ills, since
their work and duties differed. The effect
on the Blooming M ill employees was neg
ligible since the steel from these pits went
prim arily to the Slabbing M ill.
F rom the
evidence submitted, the umpire concluded
that these soaking pit changes did not
change the earnings-effort relationship of
the Blooming M ill em ployees from that p re
vailing before the changes.
What was the effect of these changes
on the rolling operations of the Slabbing
M ill? The umpire concluded that they did
not change the effort-earnings relationship
which was afforded these em ployees before
the pit changes were m ade.
He rejected
the u n ion s claim that much of the steel
from the new pits was of poor rolling quality,
necessitating closer watching. Furtherm ore,
these two pits represented at m ost a 25
percent increase in total pits servicing the
Slabbing M ill.
Although the Slabbing M ill
crew might have some increased work, "i n
creased production as such does not con
stitute a basis for wage relief under A r
ticle V , Section 5.
Nor should it, for in
creased production is by the incentive plan
reflected in increased earnings to the extent
provided for in the p la n ."
In the soaking pits them selves, the
total workload of the employees was in
creased, the arbitrator pointed out.
O ff
setting this, however, was the automatic
nature of the new pits as well as the extra
employee assigned to the p its.
He was
unable, however, to appraise the net in
crease in workload for these employees in
the soaking pits, and remitted the grievance
to the parties for further consideration of
this aspect.
Change from tim e to incentive
r a te s . — Under Section S the company and
union could agree to change an existing in
centive plan or institute a new plan. Man
agement could, on its own initiative, estab
lish a new incentive plan or new incentive
wage rate, if in its opinion such action
would encourage production.
If the work
being perform ed was not at the time paid
for on an incentive b a sis, an incentive rate
could be established only if management,
believing such a plan or rate would en
courage production, was willing to do so.
In such circum stances the arbitrator could
only decide whether the plan or wage was
"fa irly and reasonably designed to encourage
production." The arbitrator could only a c
cept or reject the plan or rate; he had no
authority to alter it.
A situation involving the above issue
arose in the case where the company in
stalled an incentive plan in the Scarfing Yard
of the 6 8 -inch Continuous Hot Strip M ill.
There had been no incentive plan in effect
before that tim e. The plan put into effect,
however, was virtually identical with the
plan that had been in effect in the Scarfing
Yard of the 5 6 - inch m ill for some years—
except that the tonnage rates and conse
quently the take-hom e earnings were lower
in the 6 8 -inch m ill. Being unable to agree
on the question of whether or not the incen
tive rate was new, the parties submitted the
issue to the umpire for a settlement of the
jurisdictional question. The plan was clearly
a new one, the arbitrator held, and as such
Section 6 was applicable.
The only issue was, therefore,
whether the plan was "fa irly and reasonably
designed to encourage production. " The fact
that the plan yielded lower earnings in the
6 8 -inch m ill Scarfing Yard than the one in
the 5 6 -inch m ill did not necessarily prove
that the new plan is unfair and unreason
able, the arbitrator stated.
Nor did the
fact that production had increased substan
tially under the new plan n ecessarily mean
that it was "fa ir ly and reasonably designed
to encourage production." The issue could
not be resolved, however, since the arbi
trator had insufficient data to make the nec
e ssary finding, and the case was returned
to the parties for additional information.
Several of the Bethlehem grievance
cases involved the union1 s request for in
stitution of an incentive plan where none
had existed. A s an illustration is the case
of the Motor Room Attendants in the Bloom
ing M ill who requested that the company
place them on an incentive compensation
basis instead of the straight hourly basis on
which they were being paid. They contended
that the increased production in the m ill, to
which they contributed, warranted increased
earnings. They compared their work to that
of the Repairmen who were incentive-rated.
The company* s position was that
there was no arbitral jurisdiction in the
case and the grievance should therefore be
d ism issed . This job had always been hourly
rated and there was no authority under the
agreement for the umpire to direct the e s
tablishment of an incentive rate for work
not previously incentive-rated.
T his, the
company maintained, was clearly established
by A rticle Y , Section 6 .
The umpire*s conclusion was that
the company was right in its position that
the application of an incentive rate in such
42
a situation remained entirely perm issive
with the company. "T h e parties1 use of the
word ’may* perm its only one meaning— a
perm issive and not a mandatory one. . . .
The parties agreed to leave it to Manage
ment to decide the matter of the incentive
rate of jobs not heretofore so rated.
The
Umpire may do no m ore but to give effect
to their agreem ent. He m ust, accordingly,
conclude that there exists no basis under
the agreement for the re lief requested by
this g rie v a n ce ."
Question of tim e or incentive rate.—
Disagreem ents also arose over the question
of whether a particular job was incentive
rated or not. An illustration is the case of
certain Building and Highway Specialty Shop
em ployees, where the company1s claim that
they were hourly rated employees was denied
by the union which asserted that the em
ployees were on an incentive ba sis.
The
grievance arose in connection with the ap
plication of a general wage increase.
The arbitrator found it necessary,
therefore, to go into the history of these
jobs and the method of payment used.
It
appeared that before the adoption of the
Inequity Agreem ent of April 1947, these
jobs carried a low occupational hourly rate.
There developeda practice, because of these
low rates, to pay a fictitious piece rate for
the job, not directly related to production
but serving to maintain a level of earnings
above the occupational rate. With the adop
tion of the Inequity Agreem ent, one of the
objectives of which was the elimination of
all irregular wage rate practices, this fic
titious piece rate arrangement was ended.
However, with the elimination of
this practice, substantial reduction of earn
ings resulted, leading to a number of griev
ances. These grievances were settled and
the grievants given "personal red c ir c le "
rates equal to their straight-tim e hourly
earnings for the 1 5 -week period preceding
August 4, 1947. This hourly rate was paid
until the time of the present grievance. In
arriving at a decision, the umpire found
that:
. . . notwithstanding the utter unsound
ness and fallaciousness of these piece
rates, the fact remains and the evi
dence is clear and uncontroverted there
on, that they were not unconditionally
applied but that some relationship be
tween the rates and the employees* e f
fort and production did exist. It appears
that the supervisory employee would
only apply the piece rate if, in his
judgment, the employee* s production
for each particular day represented a
*fair day*s* work and he was not Haying
down* on the job. And if any day*s p ro
duction was not up to some *standard,1
the piece rate would not be applied.
Thus some relationship and interde
pendence between earnings and em
ployee* 8 effort and production did exist,
however unscientific and unsound that
relationship may have been. The U m
pire can thus readily understand why
these grievants then considered them
selves incentive workers for he be
lieves they were so.
Since these jobs were incentive jobs
before the adoption of the Inequity A g re e
ment, they continued to be so after the
agreement was adopted under A rticle IV ,
Section 3, which stated:
"N either the put
ting into effect of the standard hourly wage
rates in accordance with the provisions of
this A rticle IV , nor any change in job titles
made in connection therewith,
shall of
itse lf alter or affect in any way incentive
rate. . . . " Accordingly, the umpire found
that A rticle IV, Section 1(b) was applicable
in calculating the respective wage increases
and Section 1(d) in determining their new
guaranteed occupational rates.
U. S. GOVERNMENT PRINTING OFFICE : Q — 1954
@FedFRASER