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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