MARQUETTE LAW REVIEW[l
[Vol. 43
the published cases are unrewarding at best, and usually frustrating
and divisive in addition. This is true for several interrelated reasons.
Some of them follow:
First: There is no objective standard against which matters of
arbitration practice can be measured. True, the laws of the various
states provide some regulation, but this is restricted principally to substantive matters, such as enforcement of agreements to arbitrate and
the ensuing awards. Little attention is given to matters of procedure
before the arbitrator, and that little concerns itself with situations of
fairly grievous misconduct of the arbitrator, rather than with comparatively minor points of procedure. As a result, in those very few cases
the courts have jurisdiction to review, if there is a question of procedure, it will be something like, "Did the arbitrator unlawfully refuse
to hear relevant evidence ?" rather than, "Did the arbitrator err in ruling that the burden of proof rested on the employer?" or "Did the
arbitrator err in ruling that the employer was obliged to open the
case ?" In the latter instances, the court simply has no power to review,
since nothing in the arbitration statutes or in the common law prescribes any standards for the arbitrator to follow.
Second: Since there is no legal standard imposed on the proceeding,
the parties are free to devise any procedural scheme they wish, so
long, presumably, as it is not grossly unfair to one or the other. For
example, it is not unheard of for parties to submit a dispute over the
telephone, the facts being stipulated and the conversations being limited
to argument. 2 Another example of a situation in which the parties
have worked out a somewhat unusual procedure between themselves
is the one currently in effect between Chrysler Corporation and
the UAW. Disputes between these parties are decided by the Umpire based on written statements of witnesses and the arguments
of the parties. The Umpire never sees a witness nor does he ever
view a shop operation.3 In other instances, an arbitrator may find,
depending on the nature of the relations between the parties, that he
has been called in as a sort of consultant and that he is expected to render his decision after a round table discussion of the problem, rather
than a formal hearing. In short, the rules of the game are going to
vary a great deal, depending on the expressed, or, more often, implied
desires of the parties themselves.
Third: In the majority of cases, however, the parties are likely to
come to the hearing without a clear idea of what procedure they want
followed, or will come in disagreement as to what it should be. The
2Cf., 2 Arb. Magazine (May-June, 1944) p. 27.
3This unique procedure is fully described by Wolff, Crane and Cole, The
Chrysler-UAW Umpire System, The Arbitrator and the Parties, pp. 111-141
(BNA: 1958).
1959]
GRIEVANCE ARBITRATION
arbitrator, in such cases, bears the responsibility of clearing the way of
the procedural roadblock and getting on with the case. He may be
obliged to direct one party or the other to open the case; to sustain or
overrule an objection to certain evidence (being ever conscious of his
legal obligation to hear all relevant evidence); to direct a party to
prove contested assertions by witnesses rather than through unsupported statements of its representative; or to accept or reject an exparte affidavit in lieu of oral testimony. He may be required to resolve
a myriad of different kinds of procedural issues before he can reach
the principal dispute in the case. As pointed out above, there are no
legal standards for deciding the great bulk of these problems. As a
result, the arbitrator is left to his own devices in composing the difficulty before him. He may decide the issue based solely on what seems
fair at the time; he may decide the issue based on what seems most
expedient; he may even decide the issue based on which party seems
least likely to be offended by an adverse ruling. In any event, it seems
clear that there will almost inevitably be divergent handling of the
same kind of problem by different arbitrators in different situationsor even by the same arbitrator with different parties. When to this is
added the fact that many arbitrators are lawyers, and take great comfort in handling such disputes in accordance with analogous rules of
civil or criminal procedure, and the fact that many arbitrators are not
lawyers and are not at all impressed with the analogy (together with
the fact that some lawyer-arbitrators abhor legal terminology and
legalistic approaches to arbitration, and some non-lawyer-arbitrators
delight in it), the picture becomes even more cloudy. All of this is
stated not in criticism of the seeming many-headedness of the arbitration profession, but in support of the proposition that a study of arbitration procedure is fraught with difficulties and dead-end alleys.
Numerous other difficulties could be demonstrated; but it seems
fairly apparent that discussion of arbitration procedure in general
terms must rest on the faulty assumption that there is, or should be,
uniformity and regularity in arbitration practice. This is patently not
so. It seems quite inappropriate to attempt to discuss the telephone
arbitration and the consultation arbitration mentioned above and other
situations equally unique in terms of burden of proof, rules of evidence
and the like. On the other hand, in perhaps the great majority of cases,
the parties expect the arbitrator to act in a judicial manner. He is
called in as a quasi-judge; he sits in a central position; he listens to
opening statements and closing arguments; he hears the examination
and cross-examination of witnesses and participates therein himself;
he is confronted with objections and motions; he may have the benefit
of a transcript made by a court reporter; he may, perhaps, receive
post hearing briefs. He decides the issue, usually a legal one of whether
MARQUETTE LAW REVIEW
[ Vol. 43
there has been a violation of the collective bargaining agreement, based
on the evidence before him.
It is with this latter kind of more formalized arbitration that this
paper intends to deal, in the belief that the similarities of the proceeding to trials by the court witihout a jury, and hearings before administrative tribunals, are sufficient to warrant the use of some of the techniques of these latter, developed through hundreds of years of experience, at least to the extent that their application is profitable. What
will be said in this paper is not intended to relate to situations in which
the agreement or practice or understanding of the parties compel different conclusions.
Much emphasis will be placed, in this paper, on similarities with
and differences from court procedures in the handling of specific
problems. This will be done, not in advocacy of wholesale application
of court procedures to the arbitration forum, but in the belief that
there is much to be learned from the techniques of these judicial
bodies, much more, in fact, than should be discarded because of "the
law's delays" and useless technicality. Furthermore, there seems to be
recognition by many of the leaders in the arbitration profession that
such is the case; indeed, many, many reported cases show a conscious
and unequivocal reliance on analogous rules of judicial procedure.
Those cases concerned with this problem as it relates to the "rule" of
burden of proof will be discussed in this paper.
II
WHAT
Is
BURDEN OF PROOF?
Before we can make an adequate study of the use and utility of
burden of proof in labor arbitration, we must have a fairly good
understanding of what we are talking about. Since the courts constitute the forum in which the doctrine was formalized and is now most
frequently used, they are without doubt the most logical source to consult in order to determine what burden of proof is. After determining
what the courts and legal writers think burden of proof is and how it
works, we will be in a better position to study the use of the rule and
its validity in the arbitral forum.
The term "burden of proof" is used in at least two senses in court
proceedings. Strictly, it is the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in
a cause. 4 Differently phrased, it is the "duty resting upon one party
or the other . . . to establish by a preponderance of the evidence a
proposition essential to the maintenance of the action." 5 However, the
term is frequently used to denote the "necessity which rests upon a
4 Willett v. Rich, 142 Mass. 356, 7 N.E. 776 (1886).
Kohlsaat v. Parkersburg and Marietta Sand Co., 266 Fed. 283, 284 (4th Cir.
5
1920). It should be noted that the rule relates only to questions of fact, not
to questions of law. Wieger v. Mutual Life Ins. Co., 205 Wis. 95, 236 N.W.
1959]
GRIEVANCE ARBITRATION
party at any particular time during a tHal to create a prima facie case
in his own favor, or overthrow one created against him." 6 This latter
duty is more correctly referred to as the "burden of the evidence", the
"burden of proceeding", or the "burden of going forward with the
7
'
evidence."
In the courts, the fundamental principle, subject, of course, to exceptions, is that the burden of proof in any cause rests upon the party
who, as determined by the pleadings or the nature of the case, asserts
the affirmative of an issue; and it remains with that party until the
termination of the action." More particularly, it rests upon the party
who will be defeated as to either a particular issue or the entire case
if no evidence relating thereto is adduced by either sidef This is to be
distinguished from the "burden of evidence" or the "burden of going
forward with the evidence" which may shift from side to side during
the progress of the trial.'" The location of burden of proof in the
latter sense is controlled by the logical necessities of making proof,
the burden being always on that party against whom the decision would
be rendered if no further evidence were offered."
It is considered by the courts that the rules concerning burden of
proof are essential to the proper administration of justice.',2 Some
courts regard them as involving substantial rights of a party, therefore
to be carefully guarded and rigidly enforced.'"
In the discussion of arbitration cases in this paper, an attempt will
be made, where possible, to distinguish between burden of proof when
used in the strict sense and "burden of proof" when used with obvious
reference to the "burden of going forward with the evidence," in the
sense above described.
III
BURDEN OF PROOF IN GRIEVANcE ARBITRATION
At first glance, a person unfamiliar with the jargon and tradition of
534 (1931). There appears to be some confusion on this point in the reported arbitration cases, however. e.g., in Bethlehem Steel Co., 20 Lab. Arb.
87 (1953), the arbitrator states that there is "a heavy burden of proof and
persuasion' upon a party claiming that a prior decision is erroneous in principle and should not be followed.
6 Mobly v. Lyon, 134 Ga. 125, 128, 67 S.E. 668 (1910).
7 For an example of the difference in the effect of burden of proof as distinguished from "burden of proceeding with the evidence" or "burden of
evidence", see Rutland Ry., Light & Power Co. v. Williams, 90 Vt. 276, 98
Atl. 85 (1915).
s Lilienthal's Tobacco v. United States, 97 U.S. 237 (1877) ; Kohlsaat v. Parkersburg and Marietta Sand Co., suora note 5.
9 Wilson v. California Central R.R. Co., 94 Calif., 166, 172, 173, 29 Pac. 861 (1892),
10 Scheinman v. Chalmers, 33 F. 2d 902 (3rd Cir. 1929).
11 Donovan v. St. Joseph's Home, 295 Ill. 125, 129 N.E. 1 (1920).
12 Clapper v. Lakin, 343 Mo. 710, 723, 123 S.W. 2d 27 (1938); Miller v. Kruggel,
165 Kan. 435, 195 P. 2d 597 (1948).
13 Clapper v. Lakin, supra note 12; Hunt v. Eure, 189 N.C. 482, 493, 127 S.E.
593 (1925) ; Standard Accident Ins. Co. v. Cloutier, 92 N.H. 449, 451, 32 A. 2d
684 (1943).
MARQUETTE LAW REVIEW
[Vol. 43
labor arbitration, though trained in law, would be likely to assume that
the judicially contrived rule of burden of proof would be the most
likely legal rule to be applied without hesitation by arbitral tribunals.
After all, he would say, we have here an adversary proceeding in which
opposing parties are frequently in dispute concerning factual issues.
Obviously, he would continue, a party to such a controversy must
either produce convincing evidence of any affirmative assertions essential to his case, or have his claim or defense rejected. In other words,
a party should be expected to prove his case if the facts of the matter
are seriously disputed. This is no more than a statement of the rule of
burden of proof. However, some writers, even experienced arbitrators emphasizing the informality of this consensual forum, deny that
burden of proof has a place in grievance arbitration. For example,
Jules Justin has stated:
Unlike a court of law, there is no burden upon the claiming
party to establish in the first instance a prima facie case. Likewise, except in those limited instances in which observance of
court or legal rules is required by statute, neither party14 has the
formal 'burden of proof' such as prevails in a law suit.
Another arbitrator, Marion Beatty, has remarked, "This rule [burden
of proof) is not recognized as such in arbitration. . . .Ordinarily to
insist on the burden of proof rule leaves the impression that technicalities are being brought into an arbitration case where they do not
belong."' 15 But Mr. Beatty qualifies his statement by acknowledging that
Of course somebody must prove something to the satisfaction of
the arbitrator or he will have no alternative but to dismiss the
complaint or grievance and leave the parties where he found
them. It is more appropriate to say that both parties to an arbitration run the risk of non-persuasion. 6
It would seem from this qualification that Mr. Beatty recognizes burden of proof in the strict sense, since he admits that the arbitrator has
"no alternative but to dismiss the complaint" if proof thereof is lacking.
The problem appears in sharp outline in a case decided, appropriately enough, by Mr. Justin.1 7 In this case, the issue was whether the
employer had violated the collective agreement by hiring performers
without execution of individual employment contracts in certain required form. The union, however, even after prodding by the arbitrator and challenge by the employer to show even one instance of contract violation, refused to offer any evidence. The basis for this refusal
14Justin, Arbitration, Proving Your Case, 10 Lab. Arb. 955, 963 (1948). The
article originally appeared in Personnel Magazine.
15 Beatty, Labor-Management Arbitration Manual, p. 55 (Eppler & Son: 1956).
16 Ibid.
7 Justin, I. Hirst Enterprises, Inc., 24 Lab. Arb. 44 (1954).
1959]
GRIEVANCE ARBITRATION
was the union's belief that the company was obliged in the first instance to show that it had fully complied with the agreement. Mr.
Justin rejected this argument, saying,
The Arbitrator finds no basis under the Contract or in the arbitration process to support this position. The mere assertion of a
claim, by one party against the other under a collective bargaining contract, does not prove or establish the validity of that
claim. Nor does a claim by one party, alleging that the other
party violated a contractual provision, unsupported by any
proof, compel the other party to disprove it.'
This appears to be a good statement of the rule of burden of proof in
the strict sense. Mr. Justin, however, denies any intention of relying
on this concept:
Unless the contract provides otherwise, the strict rules of legal
procedure do not apply in arbitration-neither party has the
'burden', as such, of proving or disproving an alleged claim; of
'going forward' or of making out a prima facie case. Both
parties come to arbitration as equals. Each maintains its equal
status before the Arbitrator. 9
But this statement too must be qualified: "However, the party who
claims that the contract has been violated must be prepared to offer to
the Arbitrator material and evidentiary facts to support or justify its
claim." 20
It would seem that this is a problem of semantics. The two arbitrators whose opinions are outlined above agree that "burden of proof"
has no place in grievance arbitration; but both appear to recognize the
validity of the rule when it is nameless or when it is called something
else. What seems apparent here is an understandable reluctance to use
legalistic terminology, without rejection of the underlying legal methodology. 2'
Most other arbitrators do not share this reluctance. In literally
hundreds of published cases, the rule of burden of proof is explicitly
recognized 22 and held decisive where the evidence on a point is lacking
or unconvincing. Many of these cases will be discussed in this paper.
Is24 Lab. Arb. at p. 47.
219 Ibid.
o Ibid.
21 This automatic aversion to legal terminology seems to be particularly prevalent
among union leaders without legal training who are sometimes convinced
that this is just another artificial device to frustrate a just claim. Updegraff
and McCoy's observation is very apt: "The atmosphere of ease and informality . .. may be quickly shattered by a suggestion by the company's attorney
that since the burden of proof is on the union, it should proceed first with
its evidence. This never fails to arouse the union's leaders to suspicious dissent, even though they had intended to open the case." Arbitration of Labor
Disputes, p. 96 (CCH, 1946). However, these writers state, about burden of
proof, "This is so sensible and logical a principle that no one, understanding
it, would disagree." Ibid. at 97.
22For example, in American Optical Co., 4 Lab. Arb. 288 (1946), Arbitrator
Whitton states (at p. 292): "First, I find the burden of proof / on the
MARQUETTE LAW REVIEW
[Vol. 43
IV
GENERAL OPERATION OF BURDEN OF PROOF IN GRIEVANCE ARBITRATION
Just as in the court cases discussed above in Section II of this
paper, many arbitrators draw a distinction between burden of proof
in the strict sense and the "burden of proceeding with the evidence" ,22a
using just that terminology. And, just as in the court cases, once the
party who bears the burden of proof makes out a "prima facie" case,
the burden of proceeding with the evidence is held to shift to the other
party, who must bear the burden or fail in the case. 22b Where the
evidence presented fails to constitute a prima facie case or defense
(where, for example, it is considered incredible), the opposite party is
company. The collective bargaining process implies a system of industrial
jurisprudence operating within a framework of substantive and procedural
rules of law. . . . The arbitrator is the court of last resort in the process
and should follow generally accepted procedural rules in arriving at his
decision. Of the latter, there are two that are particularly applicable to this
case, first, one side or the other should have the burden of proof, failing to
sustain which he must fail, and secondly, and as a corollary to the first, the
case must be made from the evidence presented, except for matters of common knowledge."
22a In a rather comprehensive discussion of the problem, Arbitrator Babb states
the following in Allis-Chalmers Mfg. Co., 29 Lab. Arb. 356, 358 (1957):
"While the burden of proof remains on the party affirming a fact in support
of his case and does not change in any aspect of the cause, the weight of the
evidence shifts from side to side as the hearing proceeds, according to the
nature and strength of the proofs offered in support and denial of the main
fact to be established (Central Bridge Corp. v. Baker, 2 Gray 130; Caldwell
v. New Jersey Company, 47 N.Y. 282).
"The weivht or preponderance of the evidence is its power to convince
the tribunal of the fact - of the actual truth of the proposition - to be
proved, so that it is made to appear more likely in the sense that actual belief
in its truth, derived from the evidence, exists in the mind of the impartial
tribunal notwithstanding any doubts that may linger there. It is more than
quantitative probability (Callahan v. Fleischman Company, 262 Mass. 437;
Day v. Railroad, 96 Me. 207), and requires at least sufficient evidence to remove the matter from the realm of conjecture (Creamery Package Company v.
Industrial Commission, 211 Wis. 326); the tribunal should not discard positive, credible evidence in favor of an inference drawn from tenuous circumstances that could at best support only an anaemic suspicion (N.L.R.B. v.
Sheboygan Chair Co., 125 F. 2d 636; N.L.R.B. v. Montgomery Ward & Co.,
157 F. 2d 486). The function of the Impartial Referee is, therefore, to find
the facts by weighing all the testimony, accepting all or any part of it (or
disbelieving all or any part of it even though it is uncontradicted), and
making ultimate findings not necessarily consistent with the testimony of any
one witness - although mere disbelief is not evidence, nor does it furnish
a basis for a finding the other way."
22b,"While we have held that the burden of first proceeding, and the burden of
proof, are on the Company to prove reasonable cause for the discharge, the
making of a prima facie case discharged the burden of first proceeding and
cast upon the union the burden of rebutting that prima facie case. An alibi
proved by two witnesses, when the evidence shows that there were other
witnesses to the alibi whom the union deliberately refrained from calling, does
in my opinion sufficiently rebut that prima facie case." McCoy, Southern Bell
Telephone & Telegraph Co., 26 Lab. Arb. 742, 746 (1956). See also, McCoy,
Southern Bell Telephone & Telegraph Co., 26 Lab. Arb. 186, 187; Ryder, Bay
City Shovels, Inc., 20 Lab. Arb. 342, 345 (1953); Abrahams, Westinghouse
Air Brake Co., 27 Lab. Arb. 265, 278 (1956) ; and McCoy, General Television
& Radio Corp., 2 Lab. Arb. 483 (1942).
1959]
GRIEVANCE ARBITRATION
usually held to have no obligation whatever to proceed with its case. 220
This latter approach, however, has been criticized as being too legalistic. Professor Davey observes in one decision,
This is the second case in which one party has seen fit not to
present a direct case on the basis that the other party has failed
to offer anything,to defend against. It would be presumptuous
for the arbitrator to lecture either party on how to present their
cases. Nevertheless, I think it is not inappropriate to express my
concern at the use of the technique of denying allegations. The
arbitration process is (or should be) a search for truth. In all but
the most unusual case, the best interests of the arbitration process will be served by both parties presenting their evidence to
the arbitrator. A party with a strong case has nothing to fear
by presenting his witnesses. Straight denial of allegations without presentation of witnesses precludes the other party from the
privilege of cross-examination. Often cross-examination helps
to make the factual picture clearer to the arbitrator, as
22d well as
providing a basis for judging credibility of testimony.
While there is much to be said for this point of view (since the purpose of arbitration is not only the sustaining or denying of a claim,
but the resolution and removal of a dispute), still it should be assumed
that the parties probably know what they are doing. If the defending
party in good faith feels that the charging party has simply not made
out a case, why should the arbitrator insist upon hearing another version of the facts? Indeed, even in the cited case, Professor Davey did
not let the union's refusal to present witnesses interfere with his rendering a decision in favor of the union on the ground that the company had simply not made out a convincing case.
V
EFFECT OF BURDEN OF PROOF ON ORDER OF FIRST PROCEEDING
It is ordinarily assumed in grievance arbitration, as in court cases,
that the party who bears the burden of proof is obliged to present his
proofs first. 23 This is viewed by some as an advantage. For example,
Updegraff and McCoy state:
220 McCoy, Southern Bell Telephone & Telegraph Co., 25 Lab. Arb. 270, 274
22d
23
(1955) ; Cf. Justin, I. Hirst Enterprises, Inc., supra notes 16 and 22.
Davey, John Deere Waterloo Tractor Works, 20 Lab. Arb. 583, 584-585
(1953).
See Simkin, Westinghouse Electric Co., 26 Lab. Arb. 836 (1956). At p. 841,
the arbitrator observes, "Without overemphasizing the 'burden of proof'
concept, it is obvious that it is incumbent on the Company to support the
charges made against an employee. The Company has recognized this necessity and has implemented it at the hearings by proceeding first with its evidence ind testimony." See also, .laggs, Lockheed Aircraft Corp., 27 Lab.
Arb. 709, 710-711 (1956), where the company was somewhat less accommodating. A California arbitrator is of the opinion that this result is required by
California law. Jones, Douglas Aircraft Co. 28 Lab. Arb. 198, 202-203 (1957).
In Bethlehem Steel Co., 29 Lab. Arb. 635 (1957), Arbitrator Seward required the employer to proceed first in a discharge case. As noted infra, note
25a, under Labor Arbitration Rule 26 of the American Arbitration Association, the arbitrator may in his discretion vary the order of proof.
MARQUETTE LAW REVIEW
f[Vol. 43
The right to put one's evidence first is generally considered an
advantage, and is given to the party who carries the bnrden of
proof partly to offset the disadvantages inherent in that burden,
but partly also because the logical method of proceeding is for
the one who has advanced a grievance to state and prove it."
It is questionable, however, that most parties view the obligation of
first proceeding as an advantage, since most disputes arise over the
insistence of each that the other open the case. 5 This is because of the
practical desire of each party to determine the other party's position,
with all its weaknesses, through examination and cross-examination,
before being obliged to present his own position. To the arbitrator
this frequently seems to make little difference; but to the party who
must decide which witnesses to use and which points to stress, the
matter can sometimes be important indeed.
On the other hand, in some situations, a party may himself be willing to proceed out of the usual order, simply as a means of expediting
the matter. For example, in a case in which the writer represented an
employer, the union representative made an opening statement charging that the employer had misclassified an employee. The union then
refused, as in Mr. Justin's case, described above, to submit any evidence. The basis for this refusal was the belief that the employer
should be required to prove his innocence in such cases. The writer,
however, in the interest of maintaining a satisfactory relationship
among the parties and the arbitrator, elected to present, out of the
usual order, testimony showing the lack of a contract violation. In
some cases, particularly where the claim is simple and sharply defined,
this can and perhaps should be done. From a purely practical point of
view, it will permit disposition of the grievance on the merits, a result
greatly to be preferred over a procedural ruling which might prove to
be mutually frustrating.
However, whether an employer should proceed first with his defense out of the customary order (or the union in a discipline case) is
a matter of which probably should be left to the decision of that party.
particularly where the precise details of a claim are somewhat vague, or
where there is doubt that the claim is made in good faith, or where the
defense is complex and technical, it can be unfair to expect the defending party to proceed with evidence first, before some basis for the
claim is shown. In addition, an incautious direction by the arbitrator
that a party proceed out of order can easily lead to lengthy, irrelevant
5a
and undesireable "fishing expeditions" by the other party.2
24
Op. cit. supra note 21, at p. 97; see also, Benetar, The Trial of a Labor
Arbitration,2 Prac. Law. (No. 6) 34, 38-39 (1956).
25 For example, Lockheed Aircraft Corp., and Douglas Aircraft Co., both supra
note 23, and I. Hirst Enterprises, Inc., supra note 17.
25a Justin would apparently agree. See I. Hirst Enterprises, Inc., supra note 17,
at 47. Updegraff and McCoy believe that the arbitrator should be the judge
1959]
GRIEVANCE ARBITRATION
VI
ON WHom DOES THE BURDEN OF PROOF REST?
The "rule" generally recognized by arbitrators seems to be, as in
court cases, 26 that the party holding the affirmative of an issue must
produce evidence sufficient to prove the facts essential to his claim;
therefore, the burden of proof is held to rest on the party against
whom the arbitrator would hold if no evidence were given on either
side.2 7 Illustratively: the party claiming a controlling past practice
must prove its existence and its binding effect.2 8
Similarly, where the
agreement provides for the continuance of local working conditions,
the party asserting the existence of such a condition must sustain his
contention by proof.29 A party claiming a forfeiture or penalty under
a contract has the burden of proving that such was the unmistakeable
intention of the parties thereto.' 0 A party claiming that a grievance has
been settled in an earlier step of the grievance procedure"l or that the
other party has agreed to drop the grievance12 must prove that this is
the case. If the union claims that an employee was misclassified, it
bears the burden of proof.3 A party claiming that the other has waived
some right under the contract must prove such claim.34 A party
asserting the modification 5 or cancelation 6 of an agreement, or that
an oral agreement has been made extending the terms of the written
agreement must bear the burden of proof.' 7 Similarly, a party who
claims an agreement to arbitrate a particular issue must prove the
of who should be required to open. Op. cit. supra note 21 at 97. See also
Labor Arbitration Rule 26 of the American Abitration Association: "... The
party initiating the arbitration, or his counsel, shall [first] present his claim
and proofs. .
ure ....
26Supra note 8.
.
. The arbitrator, in his discretion, may vary this proced-
2' Jones, Douglas Aircraft Co., 28 Lab. Arb. 198, 203 (1957) quoting from
Section 1981 of the California Code of Civil Procedure. The general rule
is acknowledged in Whitton, General Optical Co., 4 Lab. Arb. 288, 292 (1946) ;
Platt, Central Boiler & Mfg. Co., 11 Lab. Arb. 354, 357 (1948) ; Levy, Madison
Institute, 18 Lab. Arb. 78, 80 (1952) ; and Duff, Pittsburgh Commercial Heat
Treating Co., 24 Lab. Arb. 715, 717 (1955). See also, Cole, Flintkote Co.,
3 Lab. Arb. 723, 724 (1946).
28 Kerr, Waterfront Employers, 6 Lab. Arb. 565 (1947) ; Updegraff, Sioux City
Battery Co., 20 Lab. Arb. 243 (1953) ; Loucks, York Bus. Co., 24 Lab. Arb.
81 (1955); Blumer, Carnegie-Illinois Steel Co., 4 Lab. Arb. 9 (1945);
Dworkin, Robbins & Myers, Inc., 22 Lab. Arb. 875 (1954) ; Reynard, TexasU.S. Chemical Co., 27 Lab. Arb. 793 (1956); Hilpert, St. Louis County Water
Co., 13 Lab. Arb. 25 (1949).
29Blair, Youngstown Sheet & Tube Co., 14 Lab. Arb. 645 (1950): Killingsworth, Selekman and Shipman, Bethlehem Steel Co., 14 Lab. Arb. 282, (1950).
3o Cheney, M&ode O'Day Corp., 1 Lab. Arb. 490 (1946).
31 Killingsworth, Bethlehem Steel Co., 13 Lab. Arb. 361 (1949).
"2Conn. State Board, Flexible Barriers, Inc., 22 Lab. Arb. 106 (1954).
"3 Komaroff, North American Aviation, Inc., 22 Lab. Arb. 699 (1954).
'3
'5
Cornsweet, Mosaic Tile Co., 13 Lab. Arb. 949 (1950) ; Wyckoff, Westinghouse
Electric Corp., 12 Lab. Arb. 462 (1949).
Douglas, Merrill-Stevens Dry Dock & Repair Co., 10 Lab. Arb. 562 (1948).
36
Keough, National Tube Co., 9 Lab. Arb. 605 (1947).
'7
Pollard, Owl Drug Co., 10 Lab. Arb. 498 (1948).
MARQUETTE LAW REVIEW
[Vol. 43
existence of the agreement.3 8 And if an employer claims that an employee was not discharged, but rather quit, he has the burden of proving that point.
39
Where the contract provides a certain rule, but states that the rule
is not binding in certain enumerated instances, the burden of proving
that the case falls within the exception falls on the party asserting that
such is the case. 40 Thus, where a contract provided for the continuance of local working conditions except where a change was justified,
the burden of proving justification for a change was held to be on the
employer. 41 Similarly, where the contract provided pay for grievance
time, it has been held that the burden was on the employer to justify a
refusal to make payment.4 2 In such a case, it is assumed that, in the
absence of evidence to the contrary, the employee or union representa43
tive was engaged in activity compensable under the labor agreement.
And where the contract provided that the employer was not required to
follow seniority in case of layoff where the retention of certain employees was necessary "under the special circumstances then existing,"
it was held that the employer had the burden of demonstrating the
existence of such circumstances. 44 However, in another case, where
the contract limited backpay to the date of filing the grievance unless
the circumstances were such as to make it impossible for the employee
to know that he had a basis for a claim prior to that date, the arbitrator
held that the employer had the burden of proving that the employee
Cole, Flintkote Co., 3 Lab. Arb. 723 (1946).
39 Platt, Central Boiler & Mfg. Co., 11 Lab. Arb. 354 (1948). Other instances of
the burden of proof being imposed upon the party asserting the affirmative
are the following: Rosenfarb, Kohler & Campbell, Inc., 18 Lab. Arb. 184
38
(1952)
(". . . the burden is on the person dealing with the agent to show
that the agent has the real or apparent authority which he assumes to exercise." 18 Lab. Arb. at p. 186); Spaulding, Consolidated Steel Corp., 11 Lab.
Arb. 891 (1948) and Davey, Rath Packing Co., 24 Lab. Arb. 444 (1955) (The
burden of proving hiring discrimination against Negroes rests with the
union); Gilden, Corn Products Refining Co., 14 Lab. Arb. 620 (1950) and
Marshall, Robertshaw-Fulton Controls Co., 20 Lab. Arb. 212 (1953) (Where
the union asserts the ability of an employee to perform certain overtime
work, it "has the burden of supporting such allegation by clear and convincing proof." 14 Lab. Arb. at p. 622) ; Myers, W. L. Douglas Shoe Co., 10
Lab. Arb. 261 (1948) and Reid, McKinney Mfg. Co., 19 Lab. Arb. 291 (1952)
(Workers who claim the vested right to perform certain work must bear
the burden of proving that the vested right exists). See also Mann, Hardy
Mfg. Corp., 20 Lab. Arb. 403 (1953) ; Kaplan, Sperry Gyroscope Co., Inc., 9
Lab. Arb. 908 (1948) ; Holly, Avco Mfg. Co., 24 Lab. Arb. 269 (1955) ; Maggs,
North Carolina Pulp Co., 12 Lab. Arb. 46 (1949). This principle has also
been applied in "interests" disputes, the union being held to have the burden
of proving justification for a wage increase. Simkin, Graphic Arts Ass'n of
Washington, D.C., 12 Lab. Arb. 293, 297 (1949) and Tyree, Washington
Woodcraft Corp., 14 Lab. Arb. 242, 244 (1950).
40 Shipman, Bethlehem Steel Co., 11 Lab. Arb. 544 (1948); Cf. Pigors, Bunny
Bear, Inc., 27 Lab. Arb. 773 (1956); and Lohman, International Harvester
Co., 11 Lab. Arb. 101 (1948).
41 Bethlehem Steel Co., supra note 40.
42 Shulman, Ford Motor Co., 2 Lab. Arb. 382 (1944).
43 Epstein, Foote Bros. Gear & Machine Corp., 2 Lab. Arb. 84 (1946).
44 Seward, International Harvester Co., 14 Lab. Arb. 151 (1950).
1959]
GRIEVANCE ARBITRATION
could have had knowledge of the basis for the claim prior to the time
he filed the grievance. 45 However, this last instance may be distinguished from the others on the ground that in this case the exception
related to a limitation of an already existing liability, while in the other
cases the exception determined whether there was any liability at all.46
In some cases, arbitrators have held that a party holding the affirative of an issue may not necessarily have the burden of proof. This is
particularly true in cases in which the fundamental facts lie within the
peculiar knowledge of the opposing party.47 The courts have sometimes shown inclination in this direction ;48 but the rule recognized by
a majority of the courts seems to be that in cases of this sort the burden of proof in the strict sense remains with the party asserting the
affirmative, but that slight proof will be sufficient to shift the "burden
49
of proceeding with the evidence" to the other party.
Cases involving discharge or discipline, transfers and layoffs of
employees raise problems of particular interest and will be discussed
separately in this paper.
VII
DISCHARGE AND DISCIPLINE CASES
A. Proof of "Just Cause" for Discharge
Although there is some authority to the contrary,50 the courts generally hold that an employee suing for a wrongful discharge has the
45
46
McCoy, International Harvester Co., 16 Lab. Arb. 775 (1951).
"The defense is in the nature of limitations, which is always a matter of affirmative plea and proof." Ibid., p. 778. Cf. Wardlaw, Moran Shoe Co., 4
Lab. Arb. 587 (1946): "The retroactive date is also in issue. The burden of
47
proof that the grievance was filed with the company earlier than admitted
is on the union." 4 Lab. Arb. at pp. 588-589.
. . these employees had been transferred out of the Research Department
and were not to be expected to have first hand knowledge of what has transpired there after January 1, 1954. This is information which is peculiarly
within the knowledge of the Company, and raises a problem regarding the
burden of proof. Ordinarily the so-called burden of proof in arbitration
proceedings rests with the party filing the grievance-the Union in most cases.
A recognized exception is made in cases involving disciplinary action where
most arbitrators place upon the employer the burden of justifying the action
which it has taken in discharging, suspending or otherwise censuring an employee. The reason customarily assigned for this procedural change is that
until the union's representatives are aware of the facts upon which the company justifies its action, they are unable to rebut the case made by the em".
ployer. Similar considerations have led the arbitrator in this case to conclude
that since the reasons for the change as well as the nature of the operations
subsequent thereto, are matters within the peculiar knowledge of the Company, it should have the burden of showing that it has, as it claims, abolished
or terminated the work formerly done by these employees in the Research
Department." Reynard, Celotex Corp., 24 Lab. Arb. 369, 372-373 (1955). Cf.
Maggs, Lockheed Aircraft Corp., 27 Lab. Arb. 709 (1956).
48 Fazio v. Pittsburgh Railways Co., 321 Pa. 7, 182 Alt. 696 (1936); Glou v.
Security Ben. Ass'n, 114 Pa. Super. 139, 173 Alt. 883 (1934).
49 Giblin v. Dudley Hardware Co., 44 R.I. 371, 117 Alt. 418 (1922); Joost v.
Craig, 131 Calif. 540, 63 Pac. 840 (1901). See also, Jones on Evidence in
Civil Cases, §181 (3d ed., Bancroft Whitney, 1924).
50 Schafer v. Thurston Mfg. Co., 48 R.I. 244, 137 Alt. 2 (1927) : "In Rhode Island,
upon trial of such issues as are here involved, the plaintiff starts with the
MARQUETTE LAW REVIEW[
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burden merely of proving the existence of the contract, his performance thereof up to the time of his discharge and the resulting damages.5 1 The burden of proving the existence of just or sufficient cause
for the discharge, such being considered to be an affirmative defense,
52
is held to rest on the employer.
In the usual labor arbitration case, however, the existence of the
contract (the collective agreement) and the performance by the employee are rarely in issue. This being the case, the only remaining
questions are 1) the existence of just cause for the discharge, and 2)
the problem of proof of damages, the usual issue being the former.
On the former point, arbitrators have almost
53
invariably held that the
burden of proving "just cause" is on the employer. 54 As will appear
obligation of showing that he performed his contract faithfully and according
to his best skill and judgment. Defendant under the general issue may show
incompetency, inefficiency or mismanagement which will defeat this claim.
The burden of proof in the sense of establishing by a preponderance of the
evidence that he has faithfully performed his contract and defendant has
broken it rests upon the plaintiff. This burden does not shift. [citing cases]
Plaintiff has prima facie sustained his burden when he testifies generally to
faithful performance and the defendant's breach. [citing case] The duty of
going forward with evidence of mismanagement or misconduct or unfaithfulness is then shifted to defendant, 'if he would not have such prima facie
case result in an established case by the required weight of the evidence.'
[citing cases] At the close of the testimony, however, if the evidence be
evenly balanced, plaintiff has failed to establish his case and the verdict must
be for the defendant." 48 R.I. at pp. 248-249. While this court places the
burden of proving lack of misconduct on the plaintiff, procedurally the case
bears a close resemblance to those cases cited infra which place the burden
of proving misconduct upon the defendant-employer. See also, Zitlin v.
Max Heit Dress Corp., 151 Misc. 241, 271 N.Y.S. 275 (1934), and Russell
v. Ogden Union Ry.& Depot Co., 122 Utah 107, 114-115, 247 P. 2d 257 (1952).
Saari v. George C. Dates & Associates, 311 Mich. 624, 19 N.W. 2d 121 (1945).
521bid.; Boynton Cab Co. v. Giese, 237 Wis. 237, 296 N.W. 630 (1941); Williams v. Leaf Tobacco Co., 293 Ky. 207, 168 S.W. 2d 570 (1943); Stoffel v.
Metcalf e Const. Co., 145 Neb. 450, 17 N.W. 2d 3 (1945); see Annot. 49
A.L.R. 488-489.
5 The extremely rare cases in which arbitrators have found the union obliged
to prove lack of "just cause" have been decided on the basis of rather unique
contract language in each instance. For example, in Swift & Co., 5 Lab. Arb.
702 (1946), Professor Gregory, referring to a contract provision directing
the reinstatement of employees "proven to have been discharged without
proper cause," stated the opinion that this language placed the burden of proof
upon the union. Similarly, in another case involving substantially identical
language, the arbitrator held the burden of proof to be upon the union. In
this latter case, however, that the burden of proceeding with the evidence
initially fell upon the employer. Pollard, Aluminum Co. of America, 8 Lab.
Arb. 234, 237 (1945). In American Smelting & Refining Co., 7 Lab. Arb.
147 (1947), Arbitrator Wagner suggests that "a history of amicable unionmanagement relations" might be relevant in determining the location of the
burden of proof. (7 Lab. Arb. at p. 150). It is likely, however, that this
statement was made with cases involving a charge of discrimination for union
activity in mind. In a case involving the discharge of an airline pilot, Arbitrator McCoy found the burden of proof to be on the union, for public
policy reasons. United Air Lines, Inc., 19 Lab. Arb. 585, 587 (1952).
54 Among many others, see, Platt, Palmer-Bee Co., 2 Lab. Arb. 63 (1945);
Platt, Campbell, Wyant & Cannon Foundry Co., 1 Lab. Arb. 254 (1945);
Cahn, Christ Cella's Restaurant, 7 Lab. Arb. 355 (1947) ; McKelvey, Columbian Rope Co., 7 Lab. Arb. 450 (1947); Hampton, Caterpillar Tractor Co.,
7 Lab. Arb. 554 (1947); Wardlaw, Malone & Hyde, Inc., 5 Lab. Arb. 443
1959]
GRIEVANCE ARBITRATION
from an examination of the cases, this is burden of proof in the strict
sense; in addition, arbitrators have held consistently that the employer
bears the initial "burden of proceeding with the evidence." 55
Various rationales are utilized by arbitrators to justify the imposition of burden of proof in the strict sense upon the employer. These
are at least six in number: 1) since discharge is the most severe penalty
an employer can impose, being the equivalent of "economic capital
punishment", he must bear the burden of jusitfying such a serious
move ;56 2) since the reasons for the employer's disciplinary action are
peculiarily within his own knowledge, he must carry the burden of
demonstrating their adequacy, otherwise the employee would be unreasonably obligated to prove the "universal negative," i.e., that he was
guilty of no offense of any kind at any time ;57 3) it is "consistent with
the American tradition that a person should not be considered a wrongdoer until proof establishes his guilt" ;58 4) the imposition of the burden of proof on the employer is justifiable as merely an "extension of
scientific management to industrial relations";59 5) the existence of
"just cause" for discharge is in the nature of an affirmative defense,
therefore the burden rests on the party asserting it ;60 6) a "just cause"
provision in the agreement, in view of circumstances peculiar to industrial relations, "requires the Company, when challenged, to retrace the
[disciplinary] process and convince an impartial third person that the
facts acted upon warranted the action taken." 61 These approaches will
be discussed separately.
1. The most frequently advanced reason for imposing the burden
of proving "just cause" upon the employer is the sociological argument that the employer can exact no greater penalty than discharge, or
"economic capital punishment", and has the social obligation of justifying this action. 62 It is argued that a discharge results not only in the
(1946); Oppenheim, Delta Cartage Co., 29 Lab. Arb. 291 (1957); Cheney,
Sears-Roebuck & Co., 6 Lab. Arb. 211 (1947); Reynard, American Sugar
Refining Co., 24 Lab. Arb. 66 (1955).
55Pollard, Aluminum Co. of America, 8 Lab. Arb. 234, 237 (1945); see also,
supra note 23.
56 See Warns, Shea Chemical Corp., 29 Lab. Arb. 414, 415 (1957).
5 See M1aggs, Lockheed Aircraft Corp., 27 Lab. Arb. 709, 710-711 (1956).
58 Pollack, F. J. Kress Box Co., 24 Lab. Arb. 401, 405 (1955).
50
Warns, Shea Chemical Corp., 29 Lab. Arb. 414, 415 (1957).
60 Babb, United States Steel Corp., 29 Lab. Arb. 272, 276 (1957).
61 Jones, Douglas Aircraft Co., 28 Lab. Arb. 198, 203 (1957). Another basis
asserted for requiring the employer to bear the burden of proof in these
cases is that he was the "moving party" and should therefore justify his
action. This would appear to be somewhat irrelevant, however, since the
employer is the "moving party" in some way or another in virtually every
instance of industrial dispute.
62Warns, Lockheed Aircraft Corp., 27 Lab. Arb. 512, 514 (1956); Warns,
Shea Chemical Corp., 29 Lab. Arb. 414, 415 (1957); Hale, Howell Refining
Co., 27 Lab. Arb. 486, 491 (1956); Parker, Copco Steel & Engineering Co.,
21 Lab. Arb. 410, 418 (1953) ; Conn. State Board, Marlin Rockwell Corp., 24
Lab. Arb. 720 (1955); Conn. State Board, Enterprise & Century Undergar-
MARQUETTE LAW REVIEW
[Vol. 43
loss of a job, but also of all the benefits, particularly valuable seniority
rights, granted by the collective agreement. 63 It is further argued that
a disciplinary termination of employment marks the employee as undesirable, thereby affecting future job opportunities. 64 These are telling
arguments, a fact attested to by nearly universal acceptance. However,
it has been suggested that these arguments, in some cases at least, are
not so significant as they might seem. One writer has stated:
On some occasion in the faraway past an arbitrator, momentarily intoxicated by his own eloquence, referred to the discharge of
an employee as 'economic capital punishment.' Unfortunately,
this phrase stuck and is now one of the most honored entries in
the Arbitrator's Handy Compendium of Cliches. Now let us
see how much of the foregoing makes sense and how much
is pure drivel. Perhaps the best way to begin is by reining in the
runaway metaphor, 'discharge is economic capital punishment'.
Often, particularly in periods of full employment, it is nothing
of the sort, and by the time the grievance reaches arbitration the
employee may be happily employed somewhere else. The union
may have good reasons for pressing for a final determination of
the issue involved, but even if the arbitrator decides the discharge was improper, the employee may not be interested in reinstatement. Every experienced arbitrator has had cases of this
type; they usually involve discharge for such reasons as excessive absenteeism or tardiness, inability to get along with supervisors or fellow employees, or substandard work .... 65
The writer of this quotation goes on to note, however, that no one
doubts the fact that the burden of proving "cause" rests with the employer, the point being that it is unnecessary to resort to so rhetorical
an argument to sustain so simple a proposition.
2. An argument frequently used in this connection is that to require the employee to prove his innocence of misconduct or other fault
is to impose upon him the task of proving a "universal negative". The
argument is stated by one arbitrator as follows:
The common law does not always place the burden of proof on
the party who is seeking relief. Judges have realized that proof
of a negative is extremely difficult. Accordingly, they have held
that in many situations when the defending party is in a position
to prove an affirmative more easily than the party seeking relief
can prove a negative, the burden of proof is on the former.
Thus, when one person sues another for money lent, the lender
is not required to prove that the loan has never been paid; payment is held to be an 'affirmative defense', to be proved by the
borrower. For like reasons, when a contract forbids an emment Co., 24 Lab. Arb. 63, 64 (1955); Mann, Indianapolis Chair Co., Inc.,
20 Lab. Arb. 706, 708-709 (1953).
63 Parker, Copco Steel & Engineering Co., 21 Lab. Arb. 410, 418 (1953).
64 Conn. State Board, Marlin Rockwell Corp., 24 Lab. Arb. 720 (1955).
65 Aaron, Some Procedural Problems In Arbitration, 10 VAND. L. REv. 733,
740-741 (1957).
1959]
GRIEVANCE ARBITRATION
ployer to discharge an employee unless a justification exists, and
a discharged employee sues his employer asserting that he was
discharged without justification, most judges and arbitrators
have reasoned that it would be unjust to put on the employee the
nearly impossible burden of proving the 'universal negative' that
he had never been guilty of any conduct whatsoever justifying
his discharge; they have held that the existence of a justification
for the discharge
is an affirmative defense to be proved by the
66
employer
The arbitrator then points out that the wisdom of this rule was demonstrated in the case before him, in which the union had apparently proceeded under a completely erroneous assumption concerning the actual
reason for the discharge.
However, the "universal negative" argument seems to have more
relevance to determining the location of the "burden of proceeding
with the evidence" than it does to the determination of which party
bears the burden of proof in the strict sense. Indeed, the courts generally hold in similar cases that the burden of proof remains with the
party asserting the affirmative, though the "burden of proceeding with
the evidence" may be shifted by slight proof, where essential evidence
is within the peculiar knowledge of the other party.6 - Nor is the "universal negative" argument truly persuasive in most cases, since the
alleged infraction has usually been clearly designated in the earlier
steps of the grievance procedure. Indeed in some cases, the reason
for discipline may be quite obvious. For example, an employee discharged for striking his foreman can. hardly be heard to say that he
has no knowledge of the employer's reasons for taking disciplinary
action.
3. The argument that it is "consistent with the American tradition
that a person should not be considered a wrongdoer until proof establishes his guilt"0 8 is one which finds some support in judicial decisions.
It is generally held by the courts that an employee will not be assumed
to have been derelict in his duties merely because of the fact that he
has been discharged. 69
4. It is argued by some that since employees are at least as equally
important to an employer as are machines, manufacturing processes
and pricing policies, management should be equally diligent in justifying its decisions in all these instances:
Because of the severity of the charge, the majority of arbitrators and courts of law place the burden of proof on manage6r Maggs, Lockheed Aircraft Corp., 27 Lab. Arb. 709, 710-711 (1956).
67 Supra note 49.
6s Supra note 58.
69 Maratta v. Chas. H. Heer Dry Goods Co., 190 M1o. App. 420, 426, 177
S.W. 718 (1915); Morris Shoe Co. v. Coleman, 187 Ky. 837, 841, 221 SAV.
242 (1920): see, however, Murray v. Paramount Petroleum & Products Co.,
101 Conn. 238, 125 Alt. 617 (1924).
MARQUETTE LAW REVIEW
[Vol. 43
ment in a discharge case. All of this is not so much a shift in
philosophy toward sympathy for the worker as much as it is
merely an extension of scientific management to industrial relations. A company in its operational decisions is impersonal,
objective and carefully weighs decisions to be sure that they are
justified by the principles involved and the facts. Today personnel and industrial relations must be similarly accorded the
same intellectual emphasis. These are the facts of modern industrial life."
As a judgment of social desireability, the above statement seems unchallengeable. If management feels the responsibility (which some
say it must) to justify to the stockholders, the public or the government its decisions eliminating or altering basic products or fundamental
manufacturing techniques, or substantially revising its pricing policies,
it should also feel the obligation to justify the termination of the employment of an individual, a matter of more remote, but perhaps equal
qualitative social significance. Though this argument springs from the
expectations of society from employers, many argue that it should have
some relevance in the shaping of legal rules applicable to such cases.
5. Another argument, directly imported from judicial reasoning, is
that "just cause" is an affirmative defense, the burden of proving which
(even in the strict sense) rests upon the party asserting it.71 As
pointed out above, 72 this is the approach adopted by most, but not all,7 3
courts in resolving problems of this sort.
6. Other arbitrators make the argument (though it is perhaps no
more than a summary of those arguments outlined above, and a statement of their result) that the nature of the arbitration process itself
requires the burden of proof to rest upon the employer:
The rationale of these rulings [regarding burden of proof] rests
on the functional differences between Court proceedings and
arbitration hearings, and seeks to shape procedures functionally
sound as applied to the latter where (in discharge cases) the
ultimate industrial penalty has already been assessed and applied
by the employer, and arbitration requires that the process be
reversed, the steps taken retraced, and the situation reconstructed, so that an impartial tribunal may be convinced that the facts
warranted the action taken and that no violation of procedural
due process has occurred.74
70 Warns, Shea Chemical Corp., 29 Lab. Arb. 414, 415 (1957).
Maggs, Lockheed Aircraft Corp., 27 Lab. Arb. 709 (1956); Babb, AllisChalmers Mfg. Co., 29 Lab. Arb. 356, 358 (1957) ; Babb, United States Steel
Corp., 29 Lab. Arb. 272, 276 (1957). See court cases cited supra notes 51
and 52.
7'2Supra notes 51 and 52.
73 Supra note 50.
74 Babb, United States Steel Corp., 29 Lab. Arb. 272, 276 (1957), citing Healy,
Swift & Co., 12 Lab. Arb. 108 (1948) ; Pollack, F. J. Kress Box Co., 24 Lab.
Arb. 401 (1955) ; Hale, Howell Refining Co., 27 Lab. Arb. 486 (1956) ; Maggs,
Lockheed Aircraft Corp., 27 Lab. Arb. 709 (1956) and Jones, Douglas Aircraft Co., 28 Lab. Arb. 198 (1957).
71
1959]
GRIEVANCE ARBITRATION
In requiring the employer to "retrace the steps taken," it seems that
this approach is no more than a statement in different phraseology that
the employer should bear the burden of proof. (It is, however, difficult
to see what the fact that the "ultimate industrial penalty has already
been assessed" has to do with it, since almost all arbitration disputes
relate to past occurrences of one kind or another.)
Whatever the rationale adopted, whether any or all of the above
six arguments are accepted, it seems quite clear that the universal rule
in grievance arbitration is that the employer must carry the burden
of proof of "just cause" in a discharge case.7 - This unanimity is
rather heartening, and suggests that, even in a field so amorphous as
industrial relations, some principles have such obvious validity that
they will be accepted and applied with uniformity by a wide variety
of personalities in a great diversity of situations. The consistency of
arbitral opinion on this point seems to suggst the existence of an
emerging and evolving system of industrial jurisprudence.
B. Burden of Showing Propriety or Impropriety of the Extent of
Discipline
While arbitrators agree on the location of the burden of proving
"just cause", this unanimity does not extend to other burden of proof
problems connected with discharge cases. For example, there is not
complete agreement on where the burden of proving the propriety or
excessiveness of the disciplinary penalty lies. Some arbitrators state
simply that
. - once the employer has successfully established bases for discharge, the burden shifts to the union to demonstrate that the
penalty of discharge is too severe. 8
A rather imposing number of arbitrators reach the same result in a
more sophisticated and indirect fashion:
Where an employee has violated a rule or engaged in conduct
meriting disciplinary action, it is primarily the function of management to decide upon the proper penalty. If management acts
in good faith upon a fair investigation and fixes a penalty not
inconsistent with that imposed in other like cases, an arbitrator
should not disturb it. The only circumstances under which
a penalty imposed by management can be rightfully set aside by
75 This is apparently as true in cases involving non-disciplinary terminations of
employment as it is in cases of discharge for misconduct. See e.g., Naggi,
Gaylord Container Corp., 10 Lab. Arb. 439 (1948); Williams, Beaunit Mills,
Inc., 20 Lab. Arb. 784 (1953); Ross, American Smelting & Refining Co., 24
Lab. Arb. 857 (1955); Whitton, Allen Warehouse Co., 26 Lab. Arb. 866
(1956) ; Cf. Baab, Sager Lock Works, 12 Lab. Arb. 495 (1949).
76 Cheit, Russell Creamery Co., 21 Lab. Arb. 293, 298 (1953). See also, Healy,
Swift & Co., 12 Lab. Arb. 108, 114 (1948) ; Babb, United States Steel Corp.,
29 Lab. Arb. 272, 276 (1957); Livengood, Carolina Coach Co., 20 Lab. Arb.
451, 455 (1953); Cf. Selekman, Eastern Stainless Steel Corp., 7 Lab. Arb.
267, 270 (1947); also see Pollack, F. J. Kress Box Co., 24 Lab. Arb. 401, 405
(1955).
MARQUETTE LAW REVIEW
[Vol. 43
an arbitrator are those where discrimination, unfairness, or
other words,
capricious and arbitrary action are proved-in
7
where there has been abuse of discretion.7
Since arbitrariness, discrimination or caprice cannot be assumed without proof, the practical effect of this approach is to require the union
to bear the burden of proving that these factors are in the case. In
other words, under this approach, once management has shown an
employee to be guilty of an offense, the burden shifts to the union to
show that the penalty was assessed in an arbitrary, discriminatory or
capricious manner. It is then the union's task to bring in evidence
concerning the employee's seniority, his previous good conduct, his
skill and utility as a workman, his family status (where such is relevant), any inconsistencies of management in disciplining employees
for offenses of this type, and any other mitigating circumstances. The
union, then, under this approach, bears the risk of non-persuasion.
The contrary rule involves this principle: where the contract forbids discharge without "just cause", the employer has the burden of
proving "just cause" for the discharge. In other words, he must prove
that "the punishment fits the crime." The corollary of this proposition
is that an admitted offense might well constitute "just cause" for some
kind of discipline, but not "just cause" for discharge. As one arbitrator puts it, in a 1950 decision:
Stockham Pipe Fittings Co., 1 Lab. Arb. 160, 162 (1945); see also
McCoy, Perkins Oil Co., 1 Lab. Arb. 447, 449 (1946). In a more recent case,
Esso Standard Oil Co., 19 Lab. Arb. 495, 497 (1952), Arbitrator McCoy
explicitly followed his earlier rulings. Other cases holding similarly: Dworkin,
Chesapeake & Potomac Telephone Co., 21 Lab. Arb. 367, 377-378 (1953);
Justin, Walter Kidde & Co., Inc., 10 Lab. Arb. 265, 268 (1948) ; Gilden, Corn
Products Refining Co., 21 Lab. Arb. 105, 107 (1953) ; Prasow, National Lead
Co., 13 Lab. Arb. 28, 30 (1949); Anrod, Morris Paper Mills, 20 Lab. Arb.
653, 658 (1953) ; Donaldson, Ideal Cement Co., 13 Lab. Arb. 943, 945 (1950) ;
Larkin, Cities Service Oil Co., 17 Lab. Arb. 335 (1951). In the case last cited,
after recognizing and adopting the McCoy approach, Arbitrator Larkin adds
this caveat (17 Lab. Arb. at p. 341) : "But if such reasoning is carried too far
it can vitiate that part of a union contract which provides for a review of
disciplinary actions. Arbitrators are sometimes anxious to 'wash their hands'
of messy situations and forget that it is their duty to review the facts and to
make an independent determination of the issue, as to the fairness of such
hasty decisions. Few such disciplinary actions are taken without the presence
of certain emotional factors which should be taken into account. In the last
analysis, the very clause in the parties' Agreement which brings the arbitrator
into the picture is there to provide for a review of Management's decisions
in such matters. And if the arbitrator is worth his salt, he will not shrink
his responsibility to weigh the facts honestly."
Insofar as the McCoy approach implies that the arbitrator is powerless to
modify discipline, it is described as being a minority position: Dworkin,
William Brooks Shoe Co., 19 Lab. Arb. 65, 72 (1952). However, McCoy
himself recognizes the power of the arbitrator to modify discipline in a
proper case. McCoy, Chattanooga Box & Lumber Co., 10 Lab. Arb. 260, 261
(1948); cf. McCoy, International Harvester Co., 12 Lab. Arb. 653 (1949).
Where it is held that the arbitrator has the power to modify discipline (see
77McCoy,
Platt, The Arbitration Process in the Settlement of Labor Disputes, 31 J.
Am. Jud. Soc., August, 1947, p. 54), it would seem the better rule that the
union has the burden of proving facts sufficient to warrant modification.
1959]
GRIEVANCE ARBITRATION
In a discharge case, when the collective agreement between the
parties protects employees against discharge where there is not
'proper cause', it is well accepted that the burden of justifying
the discharge or other discipline is upon the employer. This involves the necessity on the employer of showing both the infraction of some established rule of employee conduct and the propriety of the disciplinary action taken, in this case, of discharge.
(Emphasis added)78
From this point of view, the employer has the obligation of showing
that the penalty assessed was just and proper under all the circumstances, and was consistent with disciplinary action taken in other
cases.
It can be argued that neither of these positions, nakedly stated, is
completely valid. The point of view which places on the union the
burden of proving excessiveness of the penalty fails to take account
of the fact that not all breaches of discipline warrant extreme penalties. To say that an employer need only prove some act of misconduct,
and that the union must then produce evidence to show that the discipline was improper ignores the commonly accepted proposition that
there must be some proportion between the punishment and the offense.
Indeed, no one would argue that an employer, merely by showing a
trivial tardiness by an employee, could thus shift to the union the
burden of showing the excessiveness of a penalty of discharge.
On the other hand, when the employer has produced evidence
sufficient to establish the commission of an act of misconduct prima
facie meriting discharge/7sa he should not be required to go further,
and show that there are no mitigating circumstances sufficient to affect
the result. The more reasonable view would seem to be that the union
should bear the burden of proving such circumstances. Indeed, it is
usually in by far a better position to do so, since presumably it knows
the precise grounds for its claim of excessiveness. For example, if
the union claims that the discipline imposed is inconsistent with the
degree of discipline imposed in other like cases, it should be required
to show which cases it has in mind and the fact that they actually are
similar to the one in dispute. Any other procedure would, in effect,
require the employer to prove the "universal negative", a result of
undesireability equal to that in cases in which such is required of the
union in proving lack of just cause.
78 Smith, Armen Berry Casing Co., 17 Lab. Arb. 179, 181 (1950).
7sa What is "misconduct prima facie meriting discharge", is, of course, a question
not easily answered. In cases in which the collective agreement contains a
schedule of offenses and remedies agreed to be appropriate, the schedule itself
may provide the answer. More commonly, however, the criterion will be in
the judgment of the arbitrator, giving due effect, of course, to the manner
in which the community at large regards such offenses, and to the fact that
the determination of disciplinary penalties is generally a management function.
Further examination of this and similar points is, however, beyond the scope
of this paper.
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C. Burden of Proving Discrimination or Absence Thereof
While the employer is required to prove facts constiuting "just
cause" for discharge, if the union asserts that the true reason for the
termination of the grievant was his union activity, the union must
prove that such is the case. In other words, where the union alleges
discrimination,7 9 or persecution 0 in discipline cases, arbitrators consistently hold that the union bears the burden of proof. Because of the
seriousness of the charge, it has been held that proof of discrimination
must be "substantial", 8' specific, 8 2 and more than mere "hints and
inferences,"' 3 or bare assertions.8 4 There must be more than a mere
showing that the dischargee was an active union member.8 5 Nor is it
sufficient to show that the employer has treated several employees in a
disparate fashion:
. . . it is incumbent upon one who charges that a certain act is
improperly discriminatory to prove that the two persons and
two situations in respect to which different actions were taken
were in fact so similar that
only similar action would have been
86
fair and proper in both.
However, where the union produces "substantial evidence justifying a conclusion that the employer is opposed to the organization of
his employees or has shown a previous hostile atitude to a labor organization representing his employees, '
87
some arbitrators have held that
this is sufficient to shift the burden of proceeding with the evidence
back to the employer on the issue of discrimination in the individual
case.
8
S9Doyle, Northwestern Bell Telephone Co., 19 Lab. Arb. 111 (1952) ; Cole,
Flintkote Co., 3 Lab. Arb. 770 (1946) ; Hampton, Keystone Asphalt Products
Co., 3 Lab. Arb. 789 (1946); Allen, Kaiser Company, Inc., 4 Lab. Arb. 346
(1946) ; Reynolds, Stenchever's of Hackensack, Inc., 7 Lab. Arb. 922 (1947) ;
Justin, American Agricultural Chemical Co., 7 Lab. Arb. 715 (1947); King,
Columbian Rope Co., 3 Lab. Arb. 90 (1946) ; Scarborough, Mack Mfg. Co., 2
Lab. Arb. 520 (1944) ; Elson, Indiana Railroad, 4 Lab. Arb. 70 (1946).
80 Ziegler, Vickers, Inc., 6 Lab. Arb. 663 (1947).
81 Babb, Submarine Signal Co., 4 Lab. Arb. 56 (1956): "Substantial evidence
means evidence which a reasonable and unbiased mind might accept as adequate to support a conclusion and affording a substantial basis of fact from
which the fact in issue can reasonably be inferred, as distinguished from evidence merely creating a suspicion or amounting to no more than a scintilla,
or equally supporting inconsistent inferences." (4 Lab. Arb. at p. 65). See
also McCoy, Pan American Petroleum Corp., 2 Lab. Arb. 541 (1946):
"... a strong case must be made out before an arbitrator would be justified
in attributing the discharge to an alleged motive to discourage union activity." (2 Lab. Arb. at p. 544).
82 Aaron, Douglas Aircraft Co., Inc., 3 Lab. Arb. 598 (1946).
83 Ibid.
84
Abernethy, American Zinc & Chemical Co., 6 Lab. Arb. 314, 320 (1946).
85 Cheney, Mitchell Camera Corp., 9 Lab. Arb. 370 (1948).
86 Updegraff, Indiana Railroad, 6 Lab. Arb. 789, 792 (1947).
87 Prasow, Grayson Heat Control, Ltd., 2 Lab. Arb. 335, 338 (1945).
88 Ibid.; the same thought process is suggested in Reynolds, Irvington Varnish
& Insulator Co., 8 Lab. Arb. 1041, 1042-1043 (1947), and Feinberg, Grey Advertising Agency, Inc., 7 Lab. Arb. 107, 110-111 (1947).
19591
GRIEVANCE ARBITRATION
D. Burden of Proof in Discharge of Probationary Employees
As the law stands, in the absence of an agreement to the contrary,
an individual not hired for a definite term may be discharged by his
employer at any time, for good cause, bad cause, or no cause at all. 9
The National Labor Relations Act has varied this rule only to the
extent of prohibiting employers from discharging or otherwise discriminating against employees for engaging in activities protected by
that Act.9 0
Most collective bargaining agreements provide that the employer
may discharge employees only for "just" or "proper" cause. If this
does not appear expressly, some arbitrators have shown an inclination
to hold that it is implied in other terms of the agreement. 91 It is
usually, however, provided in the agreement that an employee does not
acquire the right not to be discharged without cause until passage of a
probationary period. 92 This has the effect (absent a charge of unlawful
discrimination) of leaving unimpaired the management right to discharge probationary employees for cause of any kind or for no cause
at all. 93
Q
Some arbitrators recognize this rule and decline to examine the
facts underlying the discharge of a probationary employee, unless the
case reveals an element of illegal discrimination (the burden of proof
on this latter point, of course, rests on the union) . 4 Several other
arbitrators, however, hold that the discharge of a probationary employee may be set aside not only for wrongful discrimination, but also
for employer arbitrariness or caprice. 95 Under these decisions also,
the burden of proving arbitrariness or caprice rests with the union,96
since such cannot be presumed in the absence of evidence.
89 Associated Press v. National Labor Relations Board, 301 U.S. 103, 132 (1937);
United States Steel Corp. v. Nichols, 229 F. 2d 396, 399 (1956) ; cert. denied,
351 U.S. 950 (1956).
90 Cases cited supra note 89.
91 For example, Conn. State Board, Atwater Mfg. Co., 13 Lab. Arb. 747 (1949).
92 For example, Art. VIII, sec. 4 (b) of the 1955-1958 Agreement between Ford
Motor Company and the U.A.W.-C.I.O. provides: "The Company may discharge or transfer employees at any time during the probationary period.
However, any claims of discrimination in connection with the transfer or
discharge of temporary employees may be taken up as a grievance."
93 Paragraph 245 of the 1955-1958 Agreement between Allis-Chalmers Mfg. Co.
and Local 248, U.A.W.-C.I.O., is more explicit: "A probationary employee
has no seniority rights, and his retention is entirely within the discretion of
the Company."
94 Shulman, Ford Motor Co., 6 Lab. Arb. 853 (1946): "Discrimination is not
established by showing that the cause asserted is not a good one or is not
supported by the evidence or rests upon erroneous findings of fact." (6 Lab.
Arb. at p. 854). See also, Cole, Flintkote Co., 3 Lab. Arb. 770 (1946).
95
R. A. Smith, Ex-Cell-O Corp., 21 Lab. Arb. 659 (1953); Komaroff, North
American Aviation, Inc., 19 Lab. Arb. 565 (1952).
96 Cases cited supra note 95. It is beyond the scope of this paper to evaluate the
substantive validity of these approaches.
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E. Burden of Proof in Cases Involving Discipline Less Than Discharge
While arbitrators agree that the burden of proof in a disciplinary
discharge case rests on the employer, there is disagreement as to
whether the same considerations should extend to cases in which the
disciplinary penalty is less than discharge. Most arbitrators simply
state that the rule is the same: the employer bears the burden of proving justification for any discipline, whether discharge or something
less severe. 7 This has been held to apply even in the case of a simple
reprimand. 98 On the other hand, it has been stated, "Where, however,
discipline less than discharge is involved, it is generally held that the
burden is on the union to prove that the company lacked reasonable
ground for their decision to discipline the employee." 99
While the latter point of view is one frequently pressed by employers (even those who would concede the validity of the opposite
rule in discharge cases), it is one which is difficult to defend on principle. Of the six arguments most commonly advanced to sustain the
imposition of the burden of prof on the employer in discharge
cases, 10° only one, the "economic capital punishment" argument, is
clearly inapplicable to cases involving a milder penalty. The other five
appear to have equal relevance to both kinds of situations: in neither
case should an employee be required to prove the "universal negative";
in neither case should the employee "be considered a wrongdoer until
proof establishes his guilt"; in both kinds of case the existence of "just
cause" is obviously affirmative defense; in each kind of case there is
equal basis for requiring the "extension of scientific management to
industrial relations" and requiring the employer to "retrace the process of discipline."
For the above reasons, the better rule would seem to be that the
same "rules" should be applied in minor discipline cases as in discharge
cases. The employer should be required to prove misconduct prima
facie sufficient to sustain the degree of discipline imposed ;l°°a the
R. A. Smith, Armen Berry Casing Co., 17 Lab. Arb. 179, 181 (1950); Maggs,
Lockheed Aircraft Corp., 27 Lab. Arb. 709, 711 (1956); Hilpert, St. Joseph
Lead Co., 16 Lab. Arb. 138, 143 (1951); cf., Livengood, Sayles Biltmore
Bleacheries, Inc., 24 Lab. Arb. 408 (1955).
9s Scheiber, A. C. & C. Co., Inc., 24 Lab. Arb. 538 (1955) ; Platt, Firestone Tire
& Rubber Co., 14 Lab. Arb. 552 (1950).
99 Warns, Dayton Malleable Iron Co., 27 Lab. Arb. 242, 245 (1956). Warns continues, "More specifically then, I must decide whether the Union has proved
that the Company in these grievances lacked reasonable ground, showed bad
faith, misinterpreted the evidence or disciplined grievants according to different standards of performance than other employees similarly situated."
(Ibid.) See also, Gorder, Walter Butler Shipbuilders, Inc., 2 Lab. Arb. 633,
635 (1944); and Warns, National Carbide Co., 26 Lab. Arb. 177, 178 (1956).
:o0See supra notes 56-61.
Ooa Cf. supra note 78a.
97
1959]
GRIEVANCE ARBITRATION
union should be required, if such is in issue, to show whatever mitigating factors it claims render the discipline excessive.
F. Burden of Proof Problems in Specific Discipline Cases
Assuming the general "rule" that the employer must prove the
existence of "just cause" for discipline, where management's prerogative is thus qualified by the agreement, there are several interesting
situations demonstrating its application.
One of these is the case of discharge or other discipline for absenteeism. All agree that in such case the employer has the burden of
proof just as in any other discipline case.' 0 ' However, where the
agreement or practice of the parties excuses absences where there is
"good cause" therefor, there is a problem of who must prove the
presence or absence of "good cause" when such is alleged. In some cases
it has been held that the burden continues to rest on the employer, and
that he must prove as part of his case that the absence or absences relied
on were without justification or reasonable excuse. 0 2 What appears to
be the more logical view, however, is that once the employer has
proved that the employee has been absent an excessive number of times,
the burden of going forward with the evidence shifts to the employee
• . . the claim that a man was wrongfully discharged despite
making 'reasonable requests' and 'excuses' requires that he establish the reasonableness of his requests and the truth of his
excuses for being absent from work. It would be obviously
wrong to require that the employer disprove a vague and undefined claim of sickness by an employee. The latter having
affirmatively asserted sickness under all the rules of procedure
must be expected and required to offer proof of it. To hold
Jaffee, George D. Ellis & Sons, 27 Lab. Arb. 562, 564-565 (1956) ; Updegraff,
Mississippi Lime Co., 29 Lab. Arb. 559, 561 (1957) ; Kates, Hertner Electric
Co., 25 Lab. Arb. 281, 283 (1955).
102 Kates, Hertner Electric Co., 25 Lab. Arb. 281, 283 (1955), citing Beckman v.
Garrett, 66 Ohio St. 136, 64 N.E. 62 (1902), in which case a jury instruction
to this effect was approved. See also, Blair, B. F. Goodrich Co., 2 Lab. Arb.
278, 279 (1946) and Seward, Tennessee Coal Iron &R.R. Co., 11 Lab. Arb.
101
909 (1948). "To support Captain's discharge the Company had the burden of
proving that during his absence Captain devoted the major portion of his
time not to resting and sleeping at home but to the operation of his restaurant and doughnut business. This the Company has failed to establish"' (11
Lab. Arb. at p. 912). However, in American Steel & Wire Co., 12 Lab. Arb.
47 (1948), Arbitrator Seward states (at pp. 48-49): "When an employee
absents himself from work without permission, he assumes the burden of
proving that he had reasonable and just cause for so doing. The grievant
in this case has declined to give any explanation whatsoever of the reasons
which required that he be 'out of town' on the night in question. Had he
been willing to explain the reasons for his absence, the Board would have
been in a position to consider them and decide whether or not they constituted 'just cause' within the meaning of the Agreement. On the present
record, however, we have no alternative but to uphold the discipline as
properly imposed."
MARQUETTE LAW REVIEW
[Vol. 43
otherwise would permit the absent employee to assert any fantastic reason for absence which might occur to the imagination
and challenge the employer to disprove it. To require the employee to establish that his claim of illness is well founded is
only to require proof of the person most likely to be in touch
with all the evidence and be able to produce it, if his claim is
correct. He is likely to be defeated on such an endeavor only if
his claim is not correct. Clearly this is why it is established procedure to require the absentee employee to prove his excuse
when its correctness is challenged."'
to prove that the absences were nonetheless for "good cause" (if such
is a defense) .1 03 Professor Updegraff states this view:
While it can be argued to the contrary (where the contract or the
parties' practice permits) that lack of excuse is an essential part of the
employer's case, and he should prove the truth of the allegation, still
this is a fact which is peculiarly within the knowledge of the absentee
himself. It is, therefore, somewhat difficult to justify the holding that
the employer must prove the inexcusability of the employee's absence
from the plant.
On the other hand, when the employee has credibly testified to
facts which constitute an ecuse for his absence, the burden of proceeding should surely shift back to the employer to show that the excuse
was inadequate or that the testimony was untruthful.
Another interesting example of the operation of burden of proof is
the case of discipline for insubordination. In such case, the employer
is usually held to have the burden of proving that the order was
given, that it was given by someone authorized to do so, that the employee was in a position to hear the order, that the order was within
the scope of the employment, etc. However, it seems well established
that an employee may decline a job assignment with impunity where
the performance of it would, in his reasonable belief, subject him to an
unusual hazard to his life, limb or health. 1°5 If an employee asserts
in a disciplinary proceeding that such was the basis for his refusal,
arbitrators appear to agree that the employee (or the union in his
behalf) must proceed to prove that he reasonably believed that obe10 6
dience would have placed him in jeopardy.
Where a strike has occurred in violation of the labor agreement,
103 Jaffee,
George D. Ellis & Sons, 27 Lab. Arb. 562, 564-565 (1956); Shipman,
Ingersoll-Rand Co., 7 Lab. Arb. 564, 571 (1947).
104 Updegraff, Mississippi Lime Co., 29 Lab. Arb. 559, 561 (1957).
105 Hilpert, St. Joseph Lead Co., 16 Lab. Arb. 138 (1951).
106 Ibid.; Emery, National Zinc Co., 19 Lab. Arb. 888, 890 (1953); Platt, Firestone Tire & Rubber Co., 14 Lab. Arb. 552 (1950) ; cf. Rathbun, Waterfront
Employers' Ass'n, 4 Lab. Arb. 234 and 4 Lab. Arb. 242 (1946). In these
latter two cases, the arbitrator makes the same rulings where the union
claimed that strikes were excusable because of unsafe working conditions.
1959]
GRIEVANCE ARBITRATION
most arbitrators hold that an employer may elect to discipline all participants, 10 7 or only the leaders. If it elects the latter, however, it
appears to be the majority opinion that actual leadership must be
proved by the employer. 08 Evidence that the dischargee was a union
official, however, charged with the duty of taking preventative action,
may be sufficient to shift to the dischargee the burden of proving that
he fulfilled his duty. 10 9
It is recognized that proof of leadership in a wildcat strike is often
most difficult, and that circumstantial evidence may be all that is available. 10 Evidence of the presence of an individual in a small group of
wrongdoers may be sufficient to cast upon him the burden of showing
that he was not an active participant."'
In a fighting case, when the disciplined employee asserts that he
was justifiably defending himself, the employer has been held to have
the burden of proving (as part of his principal case) that the employee
was an aggressor and was not merely defending himself." 2 This
approach seems somewhat opposed, however, to the accepted rule in
litigation, that in an assault case the burden is on the defendant to
plead and prove any claim of justification."13
G. Quantum of Proof Required in Discipline Cases
The general rule in civil litigation is that the party who carries the
burden of proof on a particular issue must prove the point by a "preponderance of the evidence.""14 This means that he must introduce
evidence sufficient to convince the tribunal of the actual truth of the
proposition urged, so that actual belief exists in the mind of the tribunal notwithstanding any doubts that may linger there; it is more
than quantitative probability, and requires at least sufficient evidence
to remove the matter from the realm of conjecture."'
On the other hand, in criminal prosecutions, the state is required
to prove guilt "beyond a reasonable doubt" or "to a moral certainty";
this means such proof "as satisfies the judgment and consciences of
the jury, as reasonable men, that the crime charged has been committed
107 McCoy, Rheem Mfg. Co., 8 Lab. Arb. 85, 87 (1947); cf. Kelliher, Lone Star
Steel Co., 30 Lab. Arb. 519 (1958).
10s McCoy, Rheem Mfg. Co., supra note 107; Bartlett, Shell Oil Co., Inc., 13
Lab. Arb. 273, 277 (1949); Wolff, Mueller Brass Co., 3 Lab. Arb. 285, 293
(1946).
109 Updegraff, John Deere Ottumwa Works, 11 Lab. Arb. 675, 678 (1948).
110 Bowles, McLouth Steel Corp., 24 Lab. Arb. 761, 764 (1955).
113 McCoy, Southern Bell Telephone & Telegraph Co., 26 Lab. Arb. 186, 187
(1956).
112 Hepburn, Consolidated Vultee Aircraft Corp., 11 Lab. Arb. 152, 153 (1948);
Babb, Allis-Chalmers Mfg. Co., 29 Lab. Arb. 356 (1957).
"13 Morris v. McClellan, 154 Ala. 639, 45 So. 641 (1908); Lee Line Steamers v
Robinson, 218 Fed. 559 (6th Cir. 1914).
"14 Jones, Evidence in Civil Cases §5 at 5 (3d ed. 1914).
1"5 Babb, Allis-Chalmers Mfg. Co., extensively quoted supra note 22 a.
MARQUETTE LAW REVIEW
[Vol. 43
by the defendant, and so satisfies them as to leave no other reasonable
conclusion possible.""'
When the commission of a crime is directly
brought into issue in a civil case, the prevalent American view (contrary to the rule in England) is that such need only be proved by a
preponderance of the evidence, 117 or by "satisfactory and convincing"
evidence. 11 It need not be proved beyond a reasonable doubt.
Since arbitration is in the nature of a civil proceeding, 119 we should
expect to find the requirement that parties prove their claims and affirmative defenses by a preponderence of the evidence, regardless of
their particular nature. But such is not uniformly the case: indeed,
there is much confusion and conflict in the reported cases on the subject. Most of this conflict is found in cases involving discipline.
In discipline involving misconduct which is not also a violation of
the criminal law, there is a fair amount of agreement that the offense
need not be proved by more than a preponderance of the evidence, or
some similar standard. "1 0 The same rule has been held to apply in the
case of minor crimes, not involving moral turpitude. 2 ' However, even
in some cases in which there is no question of criminality, arbitrators
have held that proof beyond a reasonable doubt was required to susof the economic effect of the distain a discharge, principally because
12 '
charge upon the employee.
116 Jones,
op. cit. supra note 114, §5 at 5.
17 Id. §195 at 274-276.
'Is Id. §192 at 269-271.
119 Prasow, Rheem Automotive Co., 27 Lab. Arb. 863, 866 (1956).
(1956); Hale, General
120 Hale, Howell Refining Co., 27 Lab. Arb. 486, 491
Refractories Co., 24 Lab. Arb. 470, 481-482 (1955) ; Somers, Marlin Rockwell
Corp., 24 Lab. Arb. 728, 729 (1955) ; R. A. Smith, Kroger Co., 25 Lab. Arb.
906, 908 (1955); Dworkin, Borg-Warner Corp., 27 Lab. Arb. 148 (1956);
Gaffey, Douglas Aircraft Co., Inc., 27 Lab. Arb. 137, 141 (1956); Brown,
Tri-United Plastics Corp., 2 Lab. Arb. 398 (1946); Wagner, Homestead
Valve Mfg. Co., 6 Lab. Arb. 627 (1947) ; Parker, Copco Steel & Engineering
Co., 21 Lab. Arb. 410 (1953).
after holding that the
121In Fruehauf Trailer Co., 21 Lab. Arb. 832 (1954),
employer was required to prove a charge of theft beyond a reasonable doubt,
Professor Murphy stated (21 Lab. Arb. at pp. 835-836): "Obviously, all
criminal type cases are not alike and do not carry the same effect of disrepute. The use of obscene language, assault and battery, negligence, slander
and many other types of conduct which can be labeled as criminal do not
ordinarily carry the contempt, disrepute and evil as the label of 'thief.' This
may be good or bad. But it is a fact which cannot be ignored." See also,
Kharas, Bendix Aviation Co., 26 Lab. Arb. 480, 482 (1956) in which case it
was held that an employer was required to prove an assault off company
premises merely by a preponderance of the evidence. Also see, Dworkin,
Borg-Warner Corp., 27 Lab. Arb. 148, 150-151 (1956), involving a discharge
for struggling with a supervisor; also see, Feinberg, United Parcel Service,
Inc., 7 Lab. Arb. 292 (1947), where the discharge was for intoxication; and
Fisher, Horvitz and Kelliher, Indiana Bell Telephone Co., 22 Lab. Arb. 567
(1954), involving discharges for strike violence; contra, Gilden, Armour &
Co., 11 Lab. Arb. 601, 608 (1948) : "It is the arbitrator's opinion that he cannot properly uphold these discharges unless the proof is precise and establishes beyond a reasonable doubt that the persons were guilty of the offense."
122 Shipman, Bethlehem Steel Co., 2 Lab. Arb. 194, 196 (1945) (Breach of nostrike clause) ; Wagner, American Smelting & Refining Co., 7 Lab. Arb. 147,
1959]
GRIEVANCE ARBITRATION
In cases involving misconduct which is at the same time a serious
crime, arbitrators have differed with respect to the standard of proof
required. In some instances, the arbitrator has recognized that arbitration is in the nature of a civil, not a criminal proceeding, and has
required that the charge be proved by a preponderance of the evidence,
or the equivalent. 123 In other cases, the arbitrator has simply stated that
when such a charge is made, the employer has a greater obligation of
124
proof than in the usual discharge case.
However, a number of arbitrators have held that criminal standards
of proof are required in discharge cases where a crime of moral
turpitude, such as theft, is charged. In one case, the arbitrator required that a charge of pilferage be "demonstrated conclusively". 25
In several other cases, arbitrators have held that charges of theft and
similar offenses be proved beyond a reasonable doubt. 12 This standard
has also been applied in what may be non-criminal cases, where an element of dishonesty is involved, e.g., falsification of timekeeping
records. 12 7 Because of the informality of arbitral procedure, one
149-150 (1947) (Discharge for incompetency). In International Harvester
Co., 11 Lab. Arb. 1007 (1948), after he had discharged several employees for
insubordination, the employer relented and commuted the penalty to a two
day layoff. The union nevertheless pursued the matter to arbitration. Arbitrator McCoy, after stating that the reduction of the penalty indicated the
existence of reasonable doubt in the employer's mind, held (11 Lab. Arb.
at p. 1009), "a reasonable doubt as to guilt calls for acquittal, not for a
light penalty." This result is reached even though the arbitrator states (ibid.)
"I am not entirely satisfied of the innocence of these men."
123 Marshall, United Hosiery Mills Corp., 22 Lab. Arb. 573 (1954): "The evidence [of theft] that has been presented against the grievant is convincing
to the undersigned ....
While it is true that the evidence is circumstantial
and that grievant's guilt is not established beyond any doubt, it is sufficient
to justify a disciplinary action by the company. The evidence points to her
guilt." See also, Cahn, Jones & Laughlin Steel Corp., 29 Lab. Arb. 525, 527
(1957) (Stealing: "preponderance of the credible evidence"); Kaplan, Cafe
Romillon, Inc., 4 Lab. Arb. 726, 728 (1946) (Dishonesty: "preponderance
of the evidence to sustain such charge"). Concerning the case last cited, Professor Murphy, in Fruehauf Trailer Co., 21 Lab. Arb. 832 (1954) stated, at
p. 836, that Arbitrator Kaplan meant "beyond a reasonable doubt" when he
wrote "preponderance of the evidence." Since-the latter is a practicing attorney, this inference is somewhat questionable.
124Trotta, Little Falls Laundry Co., 9 Lab. Arb. 273, 274 (1947). (Dishonesty:
"clear and strong" evidence) ; Prasow, Rheem Automotive Co., 27 Lab. Arb.
863, 866 (1956) (Theft: "a greater burden on the Company than is usual
or customary in arbitration") ; Conn. State Board, Industrial Overall Dry
Cleaning & Supply Co., 27 Lab. Arb. 629, 630 (1956) (Dishonesty: "substantial evidence").
By way of comparison, the Connecticut State Board had,
in an earlier case, Marlin Rockwell Corp., 24 Lab. Arb. 720, 721 (1955),
required that non-criminal misconduct be "clearly established before a penalty can be justified."
125 Bernstein, Ralph E. Myers Co., 14 Lab. Arb. 437, 441 (1950).
126 Murphy, Fruehauf Trailer Co., 21 Lab. Arb. 832, 834-836 (1954); Somers,
Marlin Rockwell Corp., 24 Lab. Arb. 728, 729 (1955) ; Lesser, Amelia Earhart Luggage Co., 11 Lab. Arb. 301, 302 (1948); R. A. Smith, Kroger Co.,
25 Lab. Arb. 906, 908 (1955) ; Wolff, Chrysler Corp., 12 Lab. Arb. 699 (1949) ;
Weisenfeld, A. S. Beck Shoe Corp., 2 Lab. Arb. 212, 214 (1944) ; Hale, General Refractories Co., 24 Lab. Arb. 470, 481-482 (1955).
127 Warns, American Saw & Tool Co., 23 Lab. Arb. 534, 536 (1954); Jones,
Cannon Electric Co., 28 Lab. Arb. 879 (1957); in Aviation Maintenance
MARQUETTE LAW REVIEW
[Vol.
43
arbitrator has held that the standard of proof in theft cases is even
higher than the criminal court standard for the same kind of case. 12 s
The rationale of the cases holding that criminal misconduct must
be proved beyond a reasonable doubt is based in part upon the same
reasoning that has led arbitrators to impose the burden of proof on
employers in discharge cases generally. 12 9 The principal argument
relied on is that discharge is the equivalent of "economic capital
punishment", and represents the most sever penalty an employer can
impose. This belief, combined with the certainty that "the social
effects upon and the stigma attaching to an employee found guilty of a
criminal offense are far greater than those attaching to an employee
guilty of a non-criminal offense,"1 30 has made arbitrators understandably conscious of a social responsibility not to regard such charges
lightly.13 Professor Murphy has developed an interesting comparison
between discharge for criminal misconduct and prosecution for crime:
The effects of a finding of guilt in a charge of stealing in a
judicial proceeding are generally in terms of fine, imprisonment
or probation or suspended sentence; the result is generally loss
of property (fine) or liberty (imprisonment or probation).
...The effects in a finding of guilt in an arbitration proceeding
are generally loss of job (corresponding to the property loss),
or loss of liberty (as where the guilty person is penalized but
kept on a job under probationary rules which restrict his
liberty), or loss of freedom to get another job (to the extent
not hire one who has previously been
that future employers3 will
2
discharged as a thief.'
Professor Murphy also points out similarities in the degree of social
stigma which will accrue upon a finding of guilt in each type of
tribunal.''
The conclusion that misconduct of criminal proportions must be
proved by evidence beyond a reasonable doubt is a somewhat questionable one, however. It is possible to argue that most of the similarities
that Professor Murphy emphasizes exist between cases of this type
and criminal prosecutions are not entirely significant. It is probably
possible to fit many other kinds of disciplinary (or even non-disciplinary) discharge into the same pattern. For example, a discharge for
extreme disloyalty to the employer (disclosure of trade secrets)
can probably be compared to a criminal prosecution on most of the
Corp., 8 Lab. Arb. 261, 268 (1947), Arbitrator Aaron required that proof of
falsification of an employment application be "clear and convincing."
'2S Murphy, Fruehauf Trailer Co., 21 Lab. Arb. 832, 835 (1954).
22 See supra notes 56-61.
330 Hale, General Refractories Co., 24 Lab. Arb. 470, 481-482 (1955).
231 See cases cited supranote 126.
132Murphy, Fruehauf Trailer Co., 21 Lab. Arb. 832, 834-835 (1954), quoted
with approval in Hale, General Refractories Co., 24 Lab. Arb. 470, 481-482
(1955).
133 Fruehauf Trailer Co., supra note 132, at p. 835.
1959]
GRIEVANCE ARBITRATION
grounds cited above, yet it would probably not be required of the employer that he prove the offense beyond a reasonable doubt. As
pointed out above, the standard of proof in civil litigation when
commission of a crime is directly in issue is proof by a preponderance
of the evidence.13 4 It can be forcefully argued that no higher standard
should be used in the quasi-civil procedure of grievance arbitration.
An employer who could successfully sue an employee for an intentional
conversion of the employer's property should probably not be required
to retain the individual in his employ merely because a case cannot be
proved beyond a reasonable doubt. Where an employer can show 'by a
fair preponderance of the evidence that an employee is guilty of a
theft, the employer should, perhaps, not be required to run the continued risk of the employee's dishonest tendencies merely because
there exists some possibility of the employee's innocence. In this
connection it is interesting to note that the courts uniformly hold that
misconduct sufficient for the disbarment of an attorney need not be
proved beyond a reasonable doubt, but only by a preponderance of the
135
evidence.
On the other hand, the argument that proof beyond a reasonable
doubt should be required because of the social stigma attaching to a
discharge for theft or like offense is a potent one. In answer, it is
probably not sufficient to point out that the courts in civil cases involving similar issues do not reach this conclusion. Indeed, in fraud cases
a somewhat higher degree of proof is required than in ordinary
3
cases. iia
Furthermore, even in a civil court case, when a charge is
made that a party has committed a crime, some account must be taken
of the natural reluctance of the trier of fact to sustain such a charge
unless the evidence is quite satisfactory. What is perhaps a better
argument against the use of the "beyond a reasonable doubt" standard
of proof in grievance arbitration cases is that it is simply inappropriate.
In a proceeding which is hoped to be relatively free of at least the
more distasteful legal technicalities, it is somewhat disquieting to
encounter one of the most rigid legal concepts extant. The better view
would seem to be that in order to prove a charge of theft or the like,
the employer should be required to produce evidence sufficient to convince the arbitrator of the justness of the charge. It is conceivable
that this kind of standard will vary with the seriousness of the case,
but this result is inevitable in any event.
VIII
TRANSFER CASES
In the absence of an express contract provision, it is generally
134 Supra note 114.
In re Mayberry, 295 Mass. 155, 3 N.E. 2d 248 (1936) ; In re Rerat, 232 Minn.
1, 44 N.W. 2d 273 (1936).
135a Cf. supra note 118.
35
MARQUETTE LAW REVIEW
I[Vol. 43
some sort of limitation upon the employer's otherwise unbridled discretion. These contract provisions are generally in terms of a varying
degree of recognition of seniority. There are probably thousands of
different contractual transfer procedures currently in effect, ranging
from a simple recognition of the management prerogative or a simple
provision that all personnel moves will be made following seniority,
to detailed and complex systems involving job-bidding, bumping, aptitude testing and innumerable other intricacies. In view of the multiplicity of these arrangements, and the differences in their applications,
it is extremely difficult to draw generalized conclusions about burden
of proof problems incident to the arbitration of disputes in this area.
However, there are involved at least some principles which are accorded a degree of recognition by the arbitral profession; in addition,
some contract provisions tend to be relatively similar in substance,
though the exact phraseology may differ from agreement to agreement.
On this basis an attempt will be made to make at least a cursory
examination of the reported cases.
A. In General
Problems in the transfer area tend to be rather stereotyped in
their factual composition. Generally cases of this sort involve a union
claim of contract violation because of 1) the promotion of a junior
employee to the prejudice of a senior employee, 2) the demotion of a
senior employee while a junior employee is permitted to continue at
the same sort of work as they performed together previously, and 3)
the transfer of a senior employee to a less desirable job (or shift)
though at the same wage level, while a junior is bypassed. Generally,
the applicable contract provisions recognize seniority as a factor
deserving of consideration, but subject its significance to moderation
or elimination in favor of merit, ability and/or capacity. Consequently,
in cases of the sort described above, the employer defends his action
as being contractually permissible on the ground that the affected
senior employee had less merit, ability or capacity than did the favored
junior. The principal problem, for the purposes of this paper, is where
the burden of proving ability etc., or lack thereof, rests. 3 '
In dealing with such problems, at least where the contract language
recognized that an employer may allocate his workforce in any manner
he wishes, provided he does not run afoul of any applicable federal or
136
It seems fairly clear that the union would have the burden of proving other
facts essential to the claim: for example, a) that a transfer has been made;
b) that the grievant is within the group of employees permitted by the
contract to object (some contracts provide that only an employee within the
same department or seniority unit may object to a promotion) ; c) that the
grievant actually is senior to the favored employee. Facts of this sort are
usually undisputed, however.
1959]
GRIEVANCE ARBITRATION
state labor legislation. However, most collective agreements contain
does not clearly indicate otherwise, many arbitrators hold that the
determination of ability is uniquely a management function. 37 As a
result, management decisions in this regard will not be disturbed by
these arbitrators unless there is evidence to show that the decision
was quite unreasonable, or resulted from an abuse of discretion, or
from bias, favoritism, anti-union prejudice or a clear mistake. 3s
Some labor agreements explicitly provide for this rule. 139 The practical
effect on this approach is to place upon the union the burden of proving that the employer was arbitrary or capricious etc. in making the
transfer.' 10 It has been held, however, that where the union challenges
the validity of the criteria used by the employer in reaching his decision, the burden shifts to the employer to justify the reasonableness
4
of the criteria and to demonstrate uniformity of application..
Cases involving promotion, demotion and lateral transfers will be
discussed separately, since it has been suggested that the same standards of interpretation and application are not necessarily interchangeable in the resolution of disputes concerning these three kinds of
transfer.
42
In evaluating the following materials, it should 'be kept in mind that
the results in many of the cases cited are likely to be tied in closely
with the phraseology of the submission agreement, the manner in
which the issue was raised at the hearing, or the form of the arguments
of the parties. For example, there is an obvious difference between a
submission phrased "Was the employer arbitrary or capricious in
determining that X was more qualified than Y?" and a submission
asking, "Was Y at least equal to X in qualifications for the open job ?"
In the first submission, the likelihood is that the arbitrator will hold
that the union must prove arbitrariness. In the second there is more
room for arguing that the burden of proof rests on the employer,
though both disputes may be between the same parties, under the same
agreement and similar in nature. These differences in the manner in
which the dispute was submitted will account for some of the variance
in the cases to be discussed; but in most instances, the rulings do not
Todd Shipyards Co., 10 Lab. Arb. 627, 629-630 (1947); Prasow,
Weber Showcase & Fixture Co., Inc., 27 Lab. Arb. 40, 49 (1956).
13 Ralston, International Paper Co., 19 Lab. Arb. 402 (1952); Marshall, Lawrence Products Co., 14 Lab. Arb. 310, 312 (1950) ; Myers, Ashland Corp., 4
Lab. Arb. 599, 600-601 (1946); Shister, Sylvania Electric Products Co., 24
Lab. Arb. 703, 705 (1955).
13 Babcock, Ford Motor Co., 7 Lab. Arb. 12, 13-14 (1947); Pollard, Owl Drug
'37Prasow,
Co., 10 Lab. Arb. 498, 508-509 (1948).
340 Cases cited supra notes 137-139; Prasow, Eagle-Picher Mining & Smelting
Co., 17 Lab. Arb. 205 (1951).
14' Prasow, Todd Shipyards Co., 10 Lab. Arb. 627, 630 (1947).
1 Prasow, Weber Showcase & Fixture Co., Inc., 27 Lab. Arb. 40-49 (1956).
MARQUETTE LAJW REVIEW[
[Vol. 43
rest on such bases, but rather upon the convictions of the particular
arbitrator as to how such cases should be handled.
B. Promotions
While contracts vary vastly, those which contain explicit provision
for promotional transfers fall into two categories: the so-called
"General Motors" type and the "senior qualified employee" type.
Paragraph 63 (a) of the 1958-1961 Agreement between General Motors
Corporation and the UAW-AFL-CIO provides, "In the advancement
of employees to higher paid jobs when merit, ability and capacity are
14 3
equal, employees with the longest seniority will be given preference."'
A sample of the latter type is the following: "The Company shall give
preference to the employee with the highest seniority who can satis144
factorily perform the work of the vacant or newly created job."'
These two types of promotion provision (one or the other appears in
each of many thousands of labor agreements in this country) are not
necessarily governed by the same considerations in determining the
location of the burden of proof.
It should be noted that the General Motors language provides a
standard of comparative ability. Seniority has significance only when
the merit, ability and capacity of those competing for the promotion
are equal. The disputes arise when the employer, in an exercise of his
claimed management function, has promoted a junior employee in the
belief that the junior has greater ability, etc. Many arbitrators recognize the existence of the prerogative, and refuse to disturb management's decision unless it is shown to be arbitrary, capricious or
discriminatory. The burden of proof on these latter points is on the
union. 1 45 Others take the position, without explanation, that the union,
as an essential part of its case, must prove the existence of equal
merit, ability and capacity.1 46
language, still other arbitrators hold, in effect, that the promotion of a
On the other hand, in construing the same kind of contract
143 See also. Section 2, Article IV, of the 1955-1958 Agreement between Ford
Motor Company and the U.A.W.-C.I.O.
The contract provision quoted is the substantial equivalent of one construed
by Arbitrator Shipman in Lionel Corp., 7 Lab. Arb. 121 (1947).
145 Kelliher, Gisholt Machine Co., 23 Lab. Arb. 105, 107 (1954) ; Disman, Bemis
Brothers Bag Co., 26 Lab. Arb. 773, 779 (1956) ; Whiting, Ingram-Richardson Mfg. Co. of Indiana, Inc., 3 Lab. Arb. 482, 484 (1946) ; Reid, Blaw-Knox
Co., 23 Lab. Arb. 159 (1954); Platt, McInerney Spring & Wire Co., 9 Lab.
Arb. 91, 96 (1947) ; Selekman, Republic Steel Corp., 14 Lab. Arb. 230 (1950) ;
see also cases cited supra notes 137-139. The employer need only show that
"careful and unbiased consideration was given to all the applicants, and that
the choice was made in good faith." Copelof, Monsanto Chemical Co., 5
Lab. Arb. 291, 295 (1946).
148 For example, Grant, North American Aviation, Inc., 11 Lab. Arb. 313
(1948); Cf. Warns, Borg-Warner Corp., 27 Lab. Arb. 426, 429 (1956): "On
this point, the Union of course realizes that as the party who presents the
grievance, they have the responsibility of furnishing the arbitrator with
'proof' of elements essential to the claim of the breach by the Company."
The latter case, however, involved a lateral transfer rather than a promotion.
14
1959]
GRIEVANCE ARBITRATION
169
junior employee is a deviation from normal procedure. In making its
decision to thus deviate, management acts upon conclusions the basis
for which are known completely only to itself. As a result, these arbithe superiority of the junior
trators hold that the employer must prove
147
before the promotion will be sustained.
In order to satisfy this burden, there must be some aspect of tangibility to the employer's evidence. The late Dean Harry Shulman summarizes this position in a frequently quoted passage:
Some members of management or supervision seem to think
that it is sufficient for them to form and assert strongly the
belief that one employee is superior to another. That is clearly
not enough. They must be able to support this belief with sufficient, concrete reasons. .
.
. A supervisor's testimony that he
honestly believes one employee to be superior to another with
respect to the promotion is certainly a factor to be considered.
It is not, however, either conclusive or significant. The supervisor must be prepared to state the basis for his belief and to
support it, not by repeated assertion but by specific and understandable evidence-evidence which relates to capacity for the
job in148 question, not merely to the employee's general character.
In response to this latter position, it can be argued that judgments of
job ability are necessarily based on intangibles: on the supervisor's
evaluation of the employee's eagerness and aptitude to learn; on the
number of errors made by the employee in judgment and application,
particularly, whether the circumstances make these errors excusable or
inexcusable; on the supervisor's evaluation of the employee's willingness to apply himself to his tasks. These and other aspects of personnel
evaluation are exceptionally difficult of expression, even for a man
practiced at expressing himself, particularly in the emotion charged
atmosphere of the hearing room. Perhaps it is these considerations
which have led some arbitrators to be somewhat more tolerant than
Dean Shulman in the treatment of supervisory opinions (at least where
made in good faith):
Under a contract promotion clause similar to the one in this
case, it has been held that the promotion of a junior employee
ahead of an admittedly qualified senior employee must be upheld
where nothing in the union's evidence suggests that the employer had any ulterior motive and the company's testimony as to
the seniority [ability?] of the junior employee was convincFrohlich, Pennsylvania Salt Mfg. Co., 14 Lab. Arb. 12, 15 (1949) ; Whitton,
Columbia Steel Co., 13 Lab. Arb. 666, 668 (1949); Seward, American Steel
& Wire Co. of N.J., 9 Lab. Arb. 453 (1947); Hays, Public Service Elecrtic
& Gas Co., 12 Lab. Arb. 317, 321 (1949) ; Garrett, United States Steel Corp.,
22 Lab. Arb. 188 (1953); Bartlett, Shell Oil Co., 10 Lab. Arb. 69 (1948);
Stouffer, Diamond Power Specialty Corp., 24 Lab. Arb. 628, 630 (1955);
Williams, Avco Mfg. Corp., 27 Lab. Arb. 304 (1956); McCoy, Republic
Steel Co., 3 Lab. Arb. 760 (1946).
148 Shulman, Ford Motor Co., 2 Lab. Arb. 374, 375-376 (1945).
147
MARQUETTE LAW REVIEW
[Vol. 43
ingly sincere.
The lack of tangibility in the company's case is
1 49
irrelevant.
This approach seems somewhat preferable. If an arbitrator holds, in
a case involving the General Motors type of language, that the employer has the burden of justifying his action in the first instance, he
should perhaps take account of the fact that proof of human abilities
and capacities through oral and written presentations is difficult. The
employer will rarely be able to produce personality tests, aptitude
tests or fitness reports in aid of his case, for the simple reason that
these are not too common in industrial practice (although some employers use them). In most cases, the employer will be compelled to
rely on the supervisory judgment in making the promotion and justifying it in arbitration. Such judgment, by its nature, tends to be based
on intangible impressions, built up through experience and observation,
of the employee's abilities, attitudes and capacities. Conveying these
impressions convincingly in the atmosphere of a hearing room is not
easy of accomplishment. While it may be argued that the union is
similarly hobbled in the presentation of its case, it should be remembered that it is part of the supervisor's job to evaluate accurately the
work and abilities of those working under him, and that of all people
concerned with the case, he is in the best position to make a judgment.
If he does not carry out this responsibility conscientiously, it may well
be a factor in his removal. It should not be assumed, in the absence
of countervailing evidence, that he has been derelict in his duties. It
will rarely (unless discrimination or favoritism can be shown, and
these should not be assumed) be to the advantage of the supervisor
to promote the less qualified man. 9 0
For similar reasons, in addition to others mentioned above, it seems
to the writer, at least, that the burden of proof in this kind of case
should rest with the union. It is to the best interest of management
to promote the best qualified employees; it should not be assumed in
the absence of contrary evidence that the employer acted in disregard
of his own interests. Of course, it can be argued that the reasons for
by-passing a senior employee are peculiarly within the knowledge of
the employer and that he should demonstrate their existence and sufficiency. But it must be assumed that the union had some palpable
reason, exceeding a suspicion of contract violation, for taking the case
to arbitration to begin with. Such being the case, it does not seem
unfair to place the burden of proof on the union.
While different burden of proof considerations would seem to
Ebeling, Chrysler Corp., 14 Lab. Arb. 163, 166-167 (1950), citing Reynolds,
Hercules Powder Co., 10 Lab. Arb. 624 (1948); compare, Shipman, Lionel
Corp., 7 Lab. Arb. 121, 124 (1947).
150 Compare, Reynolds, Hercules Powder Co., 10 Lab. Arb. 624, 627 (1948):
"... to accept the Union's thesis here would amount to saying: so long as
149
1959]
GRIEVANCE ARBITRATION
apply to the "senior qualified employee" type of promotion clause, as
compared with the "General Motors" type, there is a similar division of
arbitral opinion on the subject.
As noted above, the "General Motors" type sets up a standard of
comparative ability. In contrast to this, the "senior qualified employee"
type raises no question of comparative ability, but only a question of
whether the by-passed senior employee was qualified or not. The fact
that the promoted junior was markedly superior in ability is relatively
immaterial,' 51 although, presumably, it may have some relevance in
determining what qualifications are required for the job opening.
In cases involving this second type of promotion clause, arbitrators
frequently hold that the showing of greater seniority on the part of
the grievant is sufficient to make out a prima facie case and to shift
the burden on the question of qualifications to the employer. 5 2 This
can be justified on two grounds: first, the basis for the employer's
conclusions concerning grievant's qualifications is peculiarly within
the knowledge of the employer; he should, therefore, be obliged to
explain them ;153 secondly, this type of provision is the equivalent of
stating that the senior employee will be promoted unless he is not
qualified; therefore, the burden of showing lack of qualifications rests
54
with the employer.
On the other hand, there is authority for the proposition that even
under the "senior qualified employee" type, the determination of
qualifications is a management function which may not be set aside
in the absence of proof of arbitrary or capricious conduct. 15 And
even when the management prerogative concept is not brought into
the case, some arbitrators hold that the union must prove the existence
of the requisite ability as an affirmative part of its principal case. 56
In this second type of promotion provision, there is considerably
greater room for argument that the employer should bear the burden
good faith is shown, the Employer shall have the exclusive right to judge
the relative ability of competing candidates for openings, provided that
when the Union disagrees with the Company's judgment it may have the
decision reviewed by a third party. This way lies general confusion. Aside
from its internal contradiction, the proposition is defective in its faulty assumption that outside parties, unfamiliar with the employees involved, could
make better judgments as to their relative abilities and aptitudes than could
the supervisors (assuming good faith on the part of the latter)." See also,
Ralston, International Paper Co., 19 Lab. Arb. 402 (1952).
Blair, Pittsburgh Plate Glass Co., 8 Lab. Arb. 317 (1947) ; Cornsweet, PerryFay Co., 10 Lab. Arb: 429 (1948); Berkowitz, Electric Boat Co., 11 Lab.
Arb. 719 (1948).
152Ross, Pacific Gas & Electric Co., 23 Lab. Arb. 556, 557-558 (1954); Blair,
Pittsburgh Plate Glass Co., supra note 151.
153 Compare cases cited supra notes 47-49.
54 Compare cases cited supra notes 40-44.
'55 Shipman, Lionel Corp., 7 Lab. Arb. 121, 124 (1947); Healy, Quincy Market,
Cold Storage & Warehouse Co., 7 Lab. Arb. 58, 61 (1947) ; Compare McCoy,
U.S. Rubber Co., 6 Lab. Arb. 408 (1947).
256 For example, Kaplan, Premier Metal Etching Co., 4 Lab. Arb. 363, 366 (1946).
'5'
MARQUETTE LAW REVIEW
[Vol. 43
of proof. Here it cannot be said that the employer should not be
asumed to have acted to his disadvantage, since the promotion of the
more qualified employee will constitute a contract violation when a
minimally qualified senior is by-passed. Nor can it be said that it is
not to the advantage of the supervisor to misevaluate a worker's
abilities, since he may desire to reward the better, though junior,
worker, or to be assured that the higher rated job will be more competently and efficiently filled. It might even be said (in contrast to the
General Motors type discussed above) that successful violation of
this type of contract provision may well benefit the employer, rather
than hinder him, without regard to matters of discrimination or favoritism. Here the better view would seem to be that the employer should
bear the burden of proving that the by-passed employee did not meet
the minimum qualifications for the open job. While evaluation of
employee ability continues to be a management function management
should have the obligation of justifying its action and showing that it
has not abused its prerogative, particularly when the circumstances
reveal that it would have been advantageous to do so.
C. Lateral Transfers and Demotions
Since lateral transfers (that is, transfers to another job at the same
general wage level) ordinarily do not occasion an appreciable loss of
wages or seniority standing, there would seem to be less impetus to
disputes in this area. Furthermore, express provisions in many labor
agreements make it difficult or impossible to attempt arbitral review
in such cases. 157 As a result, there are very few reported cases dealing
with this problem.
Those few cases which are reported appear to agree that the burden
rests with the union to establish facts sufficient to show a violation of
the contract 58
The area of non-disciplinary demotion, however, is one somewhat
more prolific of dispute, and some of the emotionalism normally associated with the discipline cases frequently creeps in. A demotion is,
after all, a serious blow to an employee's pride, not to speak of his
earning power.
Here again, a number of arbitrators, as in the promotion cases
For example, Paragraph 262 of the 1955-1958 Agreement between AllisChalmers Mfg. Co. and Local 248, U.A.W.-C.I.O., provides that, except in
promotion cases, "in making transfers of employes from one occupational
classification or shift to another, the Company shall consider length of
service." Paragraph 263 provides, "The Union may review any transfer,
utilizing the first three steps of the Complaint and Grievance Procedure for
that purpose. The third step shall be the terminal point of discussion. No
question with reference to paragraph 262 may be certified to the Impartial
Referee."
158 Marshall, Republic Steel Corp., 20 Lab. Arb. 800 (1953); Warns, BorgWarner Corp., 27 Lab. Arb. 426, 429 (1956); VWrallen, International Shoe
Co., 14 Lab. Arb. 253 (1950).
15
1959l
GRIEVANCE ARBITRATION
discussed above, hold that management's decision in demoting an employee (usually because of a belief of lack of ability) is one which may
be set aside only upon presentation of evidence showing arbitrariness
or caprice. 159
On the other hand, when a senior employee is transferred to a
lower rated job, this is a serious deviation from normal practice, and
some arbitrators have imposed the burden of justifying the action upon
the employer. 16 0 In the normal case, a "preponderance of the evidence"
will be sufficient to satisfy the burden. 1G1 But where the employee has
satisfactorily performed his work for a number of years, "exceptionally weighty and substantial proof",'6 2 or proof "beyond a reasonable
doubt"' 63 is required by some arbitrators when such employee is demoted for alleged incompetence, or inability.
Here again, however, since it will rarely be to the advantage of the
employer to reduce a capable employee of many years seniority (in
addition to some of the other arguments cited above and in the section
of this paper relating to promotional transfers), the better view would
seem to be that the burden of proof should rest on the union.
Ix
LAYOFF CASES
There are probably as many different layoff and recall procedures
as there are labor agreements in this country. It is frequently observed
that no one can draft a layoff system which will please both parties,
yet work satisfactorily. It is a tribute to American tenacity that the
parties persist in attempting to accomplish the impossible and are
perpetually experimenting with new devices to accomodate the conflicting interests of management and labor. As a result, seniority
provisions in a given agreement tend to differ, not only from other
agreements in the same industry, but from previous agreements between the same parties. These variations are the inevitible consequence of the complexity of the seniority problem, particularly in large
industrial establishments.
Though there is great dissimilarity of treatment of seniority in
Babcock, Ford Motor Co., 7 Lab. Arb. 264 (1947) ; Abernethy, Warren City
Mfg. Co., 7 Lab. Arb. 202 (1947); Marshall, Lawrence Products Co., 14
Lab. Arb. 310, 312 (1950); Pollard, Owl Drug Co., 10 Lab. Arb. 498, 508-509
(1948); compare, Kelliher, Allied Chemical & Dye Corp., 14 Lab. Arb. 548,
550 (1950).
10O In Flexonics Corp., 24 Lab. Arb. 869 (1955), Professor Klamon held that
the union had the burden of establishing alleged discriminatory intent, but
that the employer was obliged to prove that the favored junior employee
actually was relatively more able, as alleged by the employer. See also,
Carter, Southwestern Bell Telephone Co., 23 Lab. Arb. 609 (1954), and
Hale, Corn Products Refining Co., 25 Lab. Arb. 130, 142 (1955).
161 Hale, Corn Products Refining Co., supra note 160.
162 Hale, General Refractories Co., 24 Lab. Arb. 471, 484 (1955).
163 Komaroff, North American Aviation, Inc., 17 Lab. Arb. 784 (1952) ; Brandschain, Alan Wood Steel Co., 4 Lab. Arb. 52, 56 (1946). In the latter case,
159
MARQUETTE LAW REVIEW
[Vol. 43
individual instances, particularly with respect to the makeup of seniority units and problems of personnel movement between them, there
appears to be a fair degree of uniform acceptance of this basic proposition: the employee with the least seniority (however computed) in
the seniority unit (however determined) will be the first removed
however, a footnote (at p. 56) states, rather laconically, "'Reasonable doubt'
is not used here in its strict legal sense."
(whether transferred or laid off), provided that the employees remaining in the seniority unit have the ability to do the work there is to do.
Corollaries of this may be stated thus: 1) the least senior employee
will not be the one first removed unless his work can be done by an
employee senior to him; 2) a senior employee whose work has run
out will be the first removed unless he can perform the work being
done by a junior.164
Most of the reported cases deal with the problem of ability, and
most burden of proof problems revolve around the same question.'"
Preliminarily, the union must show which juniors were retained
allegedly in violation of the agreement, and which seniors should have
been retained instead. 166 This requirement is not satisfied merely by
presenting a list of the names of all those laid off, since it will not be
assumed that every employee in a seniority unit possesses the ability
67
to perform the work of every junior employee in that unit.
Once the dispute is narrowed down to the grievance of an individual senior referring to an individual junior's job, and the issue
of ability is raised, there is much disagreement as to who has the
burden of proof.
Those arbitrators who hold that the union has the burden of proof
frequently do so on the familiar ground that the evaluation of ability
is a management function. As a result, the union must prove arbitrariness or caprice or fail in its case.' 68
There can be no doubt that the Company alone must make the
decision as to its employees' productive ability and skill. Management's trained supervisory force is required to observe and
164 The general statement and the corollaries are, of course, not applicable in
all cases. Some labor agreements provide for the removal of the least senior
employee regardless of whether the retained employees are able to do his
work. Some labor agreements require the removal of the least senior employee if the employer can get his work done by a reshuffling of the remaining work force. Disputes under agreements of these kinds raise burden of
proof problems all their own.
165 With respect to most other matters, it would seem that the burden of proof
should clearly rest upon the union as the charging party (at least where the
agreement does not indicate a contrary result). Where there is a dispute,
the union should be obliged to prove 1) that the grievant actually is senior,
2) that the grievant is within the proper seniority unit and has rights therein,
and other similar matters. Compare note 136, supra.
266 Abernethy, National Gypsum Co., 14 Lab. Arb. 938, 941 (1950).
167 Feinberg, Bethlehem Steel Co., 14 Lab. Arb. 191, 197 (1950).
168S
Ingle, Combustion Engineering Co., 9 Lab. Arb. 515, 517 (1948); Marshall,
Merrill-Stevens Dry Dock & Repair Co., 6 Lab. Arb. 838, 841 (1947) ; Haw-
1959]
GRIEVANCE ARBITRATION
to reward skill and so to assign workers as to promote the
highest rate of production conceiveable in keeping with harmonious industrial relations and high quality of product. It is
to the Company's interest to identify and reward skill and
ability. For this reason, most seniority clauses in collective bargaining contracts qualify straight seniority with the 'skill and
ability' phrase, the latter being referred to management for
determination, while the former is automatically determined by
length of service and zealously defended by organized labor. 169
Others simply hold that proof of the senior's ability is an essential
part of the union's case, and that the union must prove its allega70
tions.
On the other hand, a number of arbitrators are of the opinion
that "as soon as the Union proves that the grieving employee has
greater seniority than the one retained, the burden to come forward
with evidence shifts to the Employer to prove that the employee laid
off or transferred does not have the skill and ability equal to the one
retained."' 171 To hold that the determination of ability is a function
of management is not the equivalent of holding that the burden of proof
rests on the union, say these arbitrators. Management must be expected to explain the reasons for its action when challenged. 1 72 In the
leading case on the subject, frequently cited by other arbitrators,
Harry Platt makes the following full exposition of this point of view:
A careful review of the evidence fails to convince me, however,
that Chronister lacks initiative in his work, or that he did not
possess initiative at least equal to that of DePodesta. In reaching this conclusion, the Arbitrator is not unmindful of the contrary testimony of the Shop Superintendant nor of the terms of
ley, Merrill-Stevens Dry Dock & Repair Co., 17 Lab. Arb. 516, 518 (1951);
Carmody, Washington Metal Trades, Inc., 23 Lab. Arb. 38, 38-39 (1954);
Baab, Thor Corp., 14 Lab. Arb. 512, 515 (1950) ; Greene, Crown Cotton Mills,
7 Lab. Arb. 526, 527 (1947); Rader, Borg-Warner Corp., 13 Lab. Arb. 149
(1949) ; Justin, Mergenthaler Linotype Co., 20 Lab. Arb. 468 (1953) ; Wardlaw, American Air Filter Co., Inc., 6 Lab. Arb. 786, 788 (1947); Whiting,
Fruehauf Trailer Co., 10 Lab. Arb. 423 (1948); Abernethy, United States
Time Corp., 23 Lab. Arb. 379 (1954).
169 Baab, Thor Corp., 14 Lab. Arb. 512, 515 (1950) ; see also, Marshall, MerrillStevens Dry Dock & Repair Co., 6 Lab. Arb. 838, 841 (1947).
170 Lewis, American Dyewood Co., 12 Lab. Arb. 983 (1949); Cheney, Norwalk
Co., 3 Lab. Arb. 535 (1946); Gilden, Link Belt Co., 6 Lab. Arb. 803 (1947);
Appleby, Aero Supply Mfg. Co., 20 Lab. Arb. 183 (1953); Sembower,
Stewart-Warner Corp., 11 Lab. Arb. 324 (1948) ; Brandschain, Lebanon Steel
Foundry, 4 Lab. Arb. 94, 99 (1946); Roberts, Libby, McNeill & Libby, 14
Lab. Arb. 316 (1950).
171 Rosenfarb, Poloron Products of Pa., Inc., 23 Lab. Arb. 789, 791 (1955).
The quotation continues, "The employer should have the burden of proving
his case with reference to skill and ability, since the employer is the one
initially to alter the status quo and make his choice as to which of the employees was to remain on the job."
172 Brandschain, Bethlehem Steel Co., 5 Lab. Arb. 578, 582 (1946) : "The Umpire
believes that even if the determination of ability and fitness are primarily
for management, it is incumbent upon management to do more than allege
that an employee who was laid off was deficient in these qualities. There
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Section 17D, which provides that the Company shall be the
judge of the 'employee's ability to do the work in question'.
The clear intent of the further language of Section 17D is,
however, that the Company's determination is subject to review
in the grievance procedure, of which arbitration is the final step.
In such circumstances, when a case is taken to arbitration, it
becomes the Arbitrator's function and duty to test the validity
of the employer's determination in the light of the authority
vested in the employer by the agreement or, in the absence of
agreement, in the light of established plant practice. That is
not to say, of course, that an arbitrator may substitute his own
judgment for that of the employer's where neither the contract
terms nor the established plant practice proscribe the employer's
action or when either furnishes a standard for exercising his
judgment which has been property applied .... Thus, in a case
such as this, where the contract expressly grants a preference to
a higher seniority employee to remain at work in the event of a
reduction of forces, if his ability to do the work in question is
relatively equal to that of a junior employee, it must be established by clear and convincing evidence that the senior employee's ability to do the work is not relatively equal to the
junior's and therefore the employer's action in retaining the
junior employee was not in excess of his powers
under the
1 73
terms of the contract or arbitrary or capricious.
For basically the same reasons, many other arbitrators impose the
burden of proof in such cases on the employer. 174 It should be noted
that these cases do not all involve exactly the same fact situations. In
some,'175 the laid off senior and the retained junior were performing
the same kind of work prior to the layoff. In such case it seems
perfectly reasonable to require the employer to justify his choice of the
junior. On the other hand, in other cases, the senior seeks to displace
a junior working on a different job.17 6 In such a situation, the union
should be required to show the senior's ability, particularly where the
senior has not performed the disputed work before. In the one case
there has been apparently satisfactory performance of the disputed
1 7
work, while in the other there is mere speculation.
ought to be evidence to support such a charge." The extent and degree to
which the determination of ability actually is a management function are
substantive matters, beyond the scope of this paper.
173Platt, Darin & Armstrong, 13 Lab. Arb. 843-847 (1950); see also, Platt,
Copco Steel & Engineering Co., 12 Lab. Arb. 6 (1949).
174"%Vaite, Campbell Soup Co., 19 Lab. Arb. 1 (1952); Wolff, Chrysler Corp.,
5 Lab. Arb. 333, 336 (1946) ; Shister, Bell Aircraft Corp., 25 Lab. Arb. 618,
623 (1955); Aaron, Airquipment Co., 10 Lab. Arb. 162 (1948) ; Aaron, MoleRichardson Co., 12 Lab. Arb. 427 (1949); Gilden, Lowell Bleachery, Inc.,
15 Lab. Arb. 403 (1950); Dodd, Bethlehem Steel Co., 10 Lab. Arb. 284
(1948); McKelvey, Rome Grader Co., 22 Lab. Arb. 167, 170 (1953) ; McCoy,
Combustion Engineering Co., Inc., 20 Lab. Arb. 416 (1953).
175 For example, Platt, Darin & Armstrong, supra note 173, and Aaron, Airquipment Co., supra note 174.
176 For example, Shister, Bell Aircraft Corp., 25 Lab. Arb. 618 (1955).
177This distinction is suggested by Brandschain, Lebanon Steel Foundry, 4
Lab. Arb. 94, 99 (1946).
1959]
GRIEVANCE ARBITRATION
X
MISCELLANEOUS MATTERS
A. Merit Increases
There appears to be agreement among arbitrators that, where the
agreement is silent, the decision of whether to grant or withhold merit
increases is one for management. Where the applicable labor agreement expressly or impliedly permits arbitral review of management's
determination, such review is generally in terms of whether management has been arbitrary or capricious in the exercise of this discretion. In such cases, arbitrators have uniformly held that the burden
rests upon the union to prove the existence of arbitrariness or
caprice 178 or that management has acted unreasonably or upon erroneous factual assumptions.
79
B. Mitigation of Damages
While the contrary result may be dictated by unique contract
language in individual instances,8 0 arbitrators generally hold that outside income earned during a period of wrongful layoff or discharge
is to be deducted from the total back-pay award.""' Furthermore, the
wrongfully separated employee is generally required to mitigate his
2
damages by attempting to obtain suitable employment elsewhere.
He is not, in the opinion of some arbitrators, however, required to
83
accept a lower paying position offered by the employer.
In civil litigation, the general rule is that a wrongfully discharged
employee is obligated neither to plead nor prove that he has been
unable to obtain outside employment. 84 If the employer desires to
reduce damages, he is required to prove that the employee had other
employment or could have obtained other employment by diligent
effort. 1
In proceedings before the National Labor Relations Board, it is
Cahn, Ralph C. Coxhead Corp., 21 Lab. Arb. 480 (1953); Schedler, Chase
Brass & Copper Co., 11 Lab. Arb. 709, 712 (1948); Bernstein, Supermatic
Products Co., 14 Lab. Arb. 139 (1950); Seward, Bethlehem Steel Co., 26
Lab. Arb. 824, 826 (1956); Kelliher, International Harvester Co., 10 Lab.
Arb. 314 (1948); S. A. Wolff, Singer Mfg. Co., 10 Lab. Arb. 67 (1948).
179 Gorder, Atlas Imperial Diesel Engine Co., 3 Lab. Arb. 1, 4 (1946); Feinberg, Bethlehem Steel Co., 21 Lab. Arb. 614, 616 (1953). Here again, appraisal of the validity of these substantive approaches to contract interpretation is beyond the scope of this paper.
180 For example, Seward, International Harvester Co., 15 Lab. Arb. 1 (1950);
Courshon, International Harvester Co., 9 Lab. Arb. 484 (1947).
181 Cheney, Mode O' Day Corp., 1 Lab. Arb. 490 (1946); Gorske, Arbitration
Back-Pay Awards, 10 Lab. L.J. 18, 25-26 (1959).
182 Conn. State Board, Tubular Products Co., 28 Lab. Arb. 255 (1957).
183 Aaron, Airquipment Co., 10 Lab. Arb. 162 (1948); Platt, Gardner-Richardson Co., 11 Lab. Arb. 957 (1948). Compare, N.L.R.B. v. Southern Silk Mills,
Inc., 242 F. 2d 697 (6th Cir. 1957), cert. denied, 355 U.S. 821 (1957).
184 Hamilton v. Love, 152 Ind. 641, 53 N.E. 181, 54 N.E. 437 (1899); annotation,
6 L.R.A. (N.S.) 108; compare Annotation, 41 A.L.R. 2d 958.
185 Tate v. School Dist. No. 11, 324 Mo. 477, 23 S.W. 2d 1013 (1930); Hollwedel
v. Duffy-Mott Co., 263 N.Y. 95, 188 N.E. 266 (1933).
178
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similarly held that the burden of proving the employee's failure to
mitigate damages is on the employer.18 6 While previously, registration with a state or federal employment service was considered conclusive evidence of a reasonable search for work (the employer being
permitted to advance other evidence of wilful idleness only if he could
show failure to register) ,17 the present rule is that regardless of
registration, the employer may show failure of the employee to use
diligence in finding other work.188 The burden of proof, however,
remains with the employer.
In arbitration, the rules appear to be similar. 1s 9
XI
CONCLUSION
As pointed out at the beginning of this paper, it is difficult and
probably basically erroneous to attempt to make generalized statements
about labor arbitration procedure. The field of labor arbitration itself
is too amorphous and unsettled to permit formulation of "rules" or
techniques to be applicable at all times and under all circumstances.
One of the great practical advantages of arbitration today is its
flexibility and its adaptability to the individual needs of widely diverse
parties. It would probably be unwise to restrict the procedure in any
manner which might impair its usefulness; it would probably be
similarly unwise to compel unwilling parties to submit disputes under
rules which they find mutually unsatisfactory.
This paper however, has proceeded under the assumption that in
most cases there is, and perhaps properly so, a certain degree of
"formalism" in labor arbitration today. There must, after all, be
some kind of procedure for arbitration hearings, informal though they
may appear. Indeed, very few cases are fit subjects for the telephone
arbitration or the arbitrator-consultant approach. Further, there are
perhaps not too great a number of companies and unions blessed with
the mutual trust and respect essential to the adequate working of
extremely informal procedures.
It is probably accurate to say that most labor arbitrations are
conducted at "arm's-length", if the gap between the parties can be
said to be so narrow. This kind of situation inherently requires some
standards of procedure outside the momentary desires and relative
strengths of the parties. The "standard" which results from this
requirement is generally a personal one, the judgment of the arbitrator
to whom the parties have mutually entrusted the decision of the dispute
186
187
188
189
Ozark Hardwood Co. 119 N.L.R.B. No. 129 (1957).
Harvest Queen Mill & Elevator Co., 90 N.L.R.B. 320 (1950).
Case cited supra note 186.
Platt, Gardner-Richardson Co., 11 Lab. Arb. 957, 961-962 (1948); compare
Wardlaw, International Shoe Co., 3 Lab. Arb. 500 (1946).
1959]
GRIEVANCE ARBITRATION
and the hearing of the case. This is, necessarily, a variable standard,
resting upon the philosophy, background, experience, prejudices and
convictions of the mutually selected arbitrator. If the manner of
exercising this judgment is unpredictable occasionally, this should not
be listed as a defect in the arbitration process as a means of settling
industrial disputes. On the contrary, it can be considered an advantage,
since it assures the parties that all the circumstances peculiar to their
problem will be considered, and that the resolution of it will be relevant to the case, not the mere restatement of some rule, in the formulation of which neither party participated. If the judgment of the
arbitrator is exercised unjustly or in an unenlightened manner, the
remedy of the parties is clear (at least for future cases): acquisition
of a new arbitrator.
However, all of this is not said in support of the proposition that
the arbitrator should consider himself free to react to procedural
problems in any direction his whims might point him. Indeed, it is
really doubtful that any of the numerous qualified arbitrators in this
country considers his status to be such. It is submitted that most arbitrators feel that they must conform to some objective standards in
procedural matters, vague and indefinite as those standards necessarily
are. Evidence of such standards can be found principally in the customs and techniques developed over the past 20-odd years (and
previously) through the experience, trial and error of the arbitrators
and the parties. In many instances (perhaps most) these customs and
techniques have borrowed the forms of analogous techniques and
procedures in legal tribunals: courts and administrative bodies. In
other instances, of course, they have been developed by the arbitration
profession itself to suit the unique process of labor arbitration.
More specifically, however, it seems fair to say, as the cases cited
throughout this paper indicate, that where an arbitration hearing is
conducted under quasi-judicial circumstances (even, at times, when it
is more informal), most arbitrators recognize the usefulness of the
burden of proof/burden of proceeding concept as it has developed in
Anglo-American jurisprudence. While some may be reluctant to so
denominate it, the validity of the principle itself is rarely questioned,
except in instances in which most would admit that it simply has no
application.
The burden of proof/burden of proceeding concept is a sound one
for use in any kind of truly adversary proceeding in which there is a
dispute of fact. It is submitted that it is not a useless technicality, nor
is it an indication of "excessive legalism".