An employer does have the right to impose reasonable discipline and an arbitrator should not substitute his or her judgment for that of the employer unless due process was violated. However, the employer must first demonstrate, based on the facts of the situation, that it had just cause for imparting the discipline. That is, the employer must present convincing evidence that the grievant's behavior broke existing rules and that discipline is warranted. In this case the absence of any direct witnesses to the incident, the lack of direct oral or written testimony by the student on the incident, and the general acceptance of the teacher's description of the incident as noted in Mr. Rogers's letter of reprimand, all weaken the ability of the committee to demonstrate that the bear hug used by Mr. O'Connell constituted unreasonable or excessive force. There simply was no convincing evidence presented to counter or to discredit Mr. O'Connell's description of the events leading up to the incident at the top of the stairwell or to counter his claim that the use of the bear hug was a defensive response designed to both protect himself from the student and prevent both the student and himself from falling down the stairs.
Mr. Rogers testified he was concerned about both Mr. O'Connell's past behavior and his relationship with students of color. However, he was unable under cross-examination to recount specific times when he had issued oral warnings to Mr. O'Connell about these concerns. His inability to present documentation of any such warnings or conversations weakens the credibility of his argument and makes these prior discussions inappropriate grounds for skipping the first stage of its progressive disciplinary policy and moving directly to a more severe written reprimand in response to the incident that gave rise to this grievance. While an action involving the use of excessive force would perhaps justify skipping the oral warning and imposing a more severe disciplinary penalty, the school committee did not present sufficient evidence to justify its view that Mr. O'Connell's bear hug constituted excessive force.
The school committee did not have just cause to reprimand Joseph O'Connell for his actions on February 7, 1999. The Rogers and the Hortoy letters and any other documents or references pertaining to this incident shall be removed from Mr. O'Connell's personnel file and expunged from his record.
Case 2 -- Discussion Questions
1. Who has the burden of proof in this case?
As stated in the arbitrator's discussion above, the employer must demonstrate that it had just cause for imparting the discipline. The employer must present convincing evidence that the grievant's behavior broke existing rules and that discipline is warranted.
2. What relevance, if any, would you give to the fact that the teacher was a large, muscular, white gym teacher and the student was a seventh-grade African American?
The race of the individuals involved should not have a bearing on whether just cause was followed in the administration of discipline. The fact that the teacher was much larger than the student might speak to the question of whether excessive force was used by the teacher.
3. What relevance, if any, would you give to the school administration's claim that this teacher has been involved in similar cases of excessive force with minority students in the past that had not resulted in disciplinary action?
This claim should be ignored given that there is no documentation in Mr. O'Connell's personnel file concerning these alleged incidents. Furthermore, since there were no previous disciplinary actions resulting from the alleged events, the past incidents are not relevant in the application of progressive discipline.
4. If you were the arbitrator, what would you decide in this case? If you decide Mr. O'Connell was unjustly disciplined, what remedy would you require? If you decide that the school administration acted properly in its discipline of Mr. O'Connell, what, if any, advice would you give to the student's parent?
See the arbitrator's decision above. It is not the job of the arbitrator to give advice to the student's parent no matter what the decision concerning the grievance.
Arbitration Case No. 3
The issue in this case is a simple one: is the repair and maintenance of desktop personal computers bargaining unit work or not? If this question were answered affirmatively, it would be necessary to determine whether management had the right to assign that work outside of the bargaining unit.
The arbitrator found that the repair and maintenance of the 4,000 desktop personal computers is not bargaining unit work because he found that the computers are a different piece of equipment from that to which the service control technicians have traditionally been assigned. While the service control technicians have performed a variety of maintenance duties, they do not perform all the maintenance work associated with the company's operations. They have never been assigned to repair or maintain office equipment and it is impracticable to assign one piece of office equipment to the hourly paid employees in the bargaining unit while having nonunion salaried employees service and repair the rest of the company's office equipment.
The grievance is denied.
Case 3 -- Discussion Questions
1. If you were the arbitrator, what would you decide in this case?
See the arbitrator decision above.
2. Does the company have an obligation to provide career development to workers such as service control technicians who are the highest paid members of the bargaining unit?
The company does not have a contractual obligation to provide career development to its workers. However, the company is advantaged by improving the morale of its hourly employees and gaining access to well-qualified workers to fill openings that appear in the firm. Thus, it may be in the long-run interests of the company to provide training and career development to its hourly employees just as it makes sense for the firm to do the same for its salaried employees.
3. If a company offers training and promotional opportunities to jobs outside of the bargaining unit, should workers have the opportunity to carry over their union membership and coverage under collective bargaining? What would our labor law say in this case? What would good human resource management practice suggest?
The law does not require that promoted employees carry with them their union coverage if the new job is not in the designated bargaining unit. Clearly, the union has an interest in keeping a promoted employee as a member and in expanding the scope of the bargaining unit. Management may want to limit the scope of the bargaining unit to maintain its flexibility and reduce union control. At the same time, management may decide that it benefits from working with the union on this issue and in relying on the union to help it generate qualified employees.
4. How should a company and a union handle cases like this? Is arbitration the best option? If you were the arbitrator in this case, what alternative ways might you suggest for handling such issues in the future?
The company and the union know the situation and their concerns best. They should try to settle this and like matters through discussions. A joint labor-management committee (possibly a training and education committee) could be used to establish guidelines regarding promotion and training opportunities.
Arbitration Case No. 4
Discussion of Subsequent Events
This case was settled through mediation. It took three meetings spread over the course of about one month.
At the first mediation session we made enough progress in laying out a "framework" for a possible agreement conditional upon the "experts'" analyzing the feasibility and economic impacts of the general terms of the proposed plan. That plan essentially had the following features:
1. A standard of reading 280 meters per employee per shift.
2. Twice-a-day reporting (i.e., employees would each have to report back with their itrons at the end of the day as management proposed).
3. The new standard would not be changed for three years (thus addressing the "continued speed-up" fears of the union) unless the parties mutually agreed to additional changes.
4. The economic gains or savings from any future changes that the parties agreed to would be shared 50-50 between the company and the employees.
At the second mediation session the union and company experts reported the results of their computer runs to test the feasibility and economic impacts of the proposed plan. Although there were a number of small bugs and issues to be resolved, it looked like the plan worked and was generally acceptable to both parties. So, it looked like we were about at the point of reaching an agreement. BUT . . .
The issue of twice-a-day reporting, i.e., the requirement that the employees report back at the end of the day all of a sudden reared up as a more significant obstacle to an agreement. Recall that the union was going through a leadership transition. The second meeting took place the day of the transition
. (Bad timing for the mediation. The mediation session was scheduled before the union meeting installing the new president). To make a long story short, mediation broke down over the twice-a-day reporting issue.
Another mediation session was scheduled for three weeks later, and the mediator indicated he would talk to the representatives by phone in a week or so to get further ideas of how to break the impasse.
In the course of these calls the mediator suggested an experiment (essentially allowing the workers to assign responsibility to one meter reader to collect all the itrons in a region at the end of the day and get them back to the office rather than having each individual report back with his or her own itron). Both parties indicated they would talk to their colleagues and think about this approach. (An idea similar to this had actually been tossed out in discussion at one point earlier in the process and discarded without any real discussion so it was neither a totally original idea of the mediator nor something the parties hadn't heard of before.)
The third mediation session started off with a big blow-up by the new union president -- partly for show. He was upset because his bargaining team members were saying a "deal" had already been made on the reporting issue. Somehow the experiment idea had been "leaked" to everybody, thereby destroying his credibility. Anyway, he put on his show for his internal constituency and for the management team, and when we cooled down a bit the mediator met separately with both teams to go over the overall range of issues to make sure there were no other hidden issues that might explode.
Then an intense session was held involving the mediator and the two spokespeople without the rest of the bargaining team members. The parties went through the entire list of issues and clarified the settlement point on each and then took the proposed settlement back to their teams for discussion. After several more back-and-forth sessions in which the package was modified based on inputs from team members, an agreement was reached and a memorandum of settlement was drafted to take back to the union for ratification. The agreement was ratified unanimously. Its essentials called for:
1. All itrons returned at the end of each day. Each individual employee is personally responsible for getting the itron back; however, the employees are allowed to experiment with having one person in each area designated as a "courier" to return the itrons for his or her colleagues. The company reserves the right to evaluate this experiment and to require individuals to return the itron if this arrangement proves unsatisfactory.
2. The average number of meters to be read per day is 294. (The increase from 280 reflects some changes in the way the number is counted plus some additional meters that the company now will have read because they no longer have to provide the time for employees to return at the end of the day.)
3. The new standard will be remain in effect for three years unless changed by mutual agreement.
4. A joint committee to review opportunities for achieving further productivity improvements will be established. Savings from any further improvements will be shared 50-50 between the company and the employees.
Case 4 -- Discussion Questions
1. If you were the mediator, how might you go about helping the parties find a solution? For example, would you spend most of your time working with the parties in separate sessions by shuttling ideas and proposals back and forth between the labor and management teams? Or would you work jointly with both sides in a common session?
Given the generally positive relationship and the complexity of the technical issues and the lack of familiarity of the mediator, most mediators would advise spending more time in joint sessions early on probing the issues, getting the parties to discuss them with each other and with the mediator to both inform the mediator and to get a sense of which issues are critical and where openings might exist.
The disadvantage of separate sessions is that communication slows down and the mediator becomes the transmitter of ideas at a time when the mediator has little to work with from the parties and little insight of his or her own to draw on.
But some separate sessions are also needed to "sense" the attitudes of the different team members -- with each other and toward the other side -- and to learn more about the hidden issues, personalities, and potential channels for negotiations.
But regardless of whether there are joint or separate sessions, about all the mediator can do in these early stages is keep probing for a new approach to the problem. The parties don't want to stay stuck in the same impasse that brought them to mediation -- they need to find some framework for moving toward an agreement. So the mediator's initial job is to help "discover" this framework.
This can often be done early by raising ideas -- ideas that the mediator is ready to discard quickly or eventually as they prove to be either unworkable or tried already and rejected. For example, in this case the mediator (one of the authors) tried out the idea of gain sharing but was quickly rebuffed by management. But in doing so management planted another idea. The response was: "We're not even willing to consider any form of gain sharing until we get our productivity up to a level that is at least equivalent to the average of our industry." By saying this management didn't rule out some form of benefit sharing after
reaching some standard. Note that we did this in the final settlement.
2. As mediator, how might you draw out the expertise of the union and management technical experts who work with the key data as part of their jobs? Would a subcommittee be advisable? What guidelines should the subcommittee work under?
First, the mediator had to put each of them at ease -- talk with them individually in private, show his respect for their knowledge, tell them he would need their help along the way, ask them questions to make them feel like experts "educating" the professor, etc.!
Second, a structure -- subcommittee or some other off-line process, is needed to get them to work together; they obviously could not do this in a vacuum or they would have done it already! So we needed to find a set of principles for the parties to use to explore feasible solutions.
This was accomplished when management indicated (in confidence in a separate session with the mediator) that if we could get to the mid-range of the productivity-cost distribution as a first step in solving the problem, management would be happy. With this information
, the mediator could then work separately with the union team to ask: "What could be done to improve the operation? What's the biggest feasible jump in numbers of meters that could be read and still be realistic here and how would you go about making this happen?" When the union expert returned an answer that put us in management's range of acceptability, the mediator sensed that a "framework" was beginning to emerge. Then it was a matter of drawing out from both sides what else was needed to go in the framework for a mid-range number to be acceptable.
This is where the twice-a-day reporting requirement surfaced as something near and dear to the heart of management. It had to be!
No such strong statement came from the union team in the first mediation session. So this provision was put in the framework for the experts to explore. Little did the mediator know this would come back to haunt the process later on!
A subcommittee of two -- the union and management experts --had to be put to work off-line between mediation sessions. But before this two-person committee could go to work the parties had to have a general feeling that we had a "positive contract zone" to work with and this was what the mediator had to determine before proposing that the two work together on a proposed solution. So the mediation process had to identify a number or a target for the experts to evaluate. This number had to be put on the table by one side or the other -- without a final commitment. The management spokesperson was willing to do this. After he did, the other parameters of the framework could be specified and the experts sent off for a couple days of analysis and testing.
The second mediation phase made a promising start and looked like it would produce an agreement until the internal politics of the leadership transition and the false start on the twice-a-day reporting interfered. Now it became clear that it was the union that would not settle, contrary to the mediator's judgment that management was blocking a settlement. Both sides dug in, and another session of private probing and proposing was needed to resume the process.
The third session worked because private talks between the mediator and the spokespeople for each side were followed by talks between the two spokespeople and because the union leadership transition was behind us.
3. If mediation failed and you were the arbitrator, what would you decide? How would you increase the chances that your decision is workable and equitable?
The best strategy would have been to prolong mediation. This would have been a tough arbitration, especially given that the last obstacle to a settlement was so political in nature.
If arbitration was required, the risks could be reduced by choosing a "tripartite" structure -- one neutral arbitrator working with one arbitrator designated by each party (maybe even the two technical experts).
The arbitration hearing could be treated as a more formal extension of the mediation process by probing for information that might suggest a resolution and then suggesting in private to each party to explore the idea for a possible settlement without an arbitrator's decision. Even if this fails, information is gathered on points the parties rejected as unworkable or unacceptable.
What would an arbitrator likely decide in this case? An arbitrator would probably present a very conservative short-run solution -- one that would not break radical new ground or require the parties to establish some ongoing process to make the settlement work. This solution would require some compromise on the number of meters to be read; he or she might suggest (but would very likely not impose or require) some type of gain sharing of future benefits and/or establishment of an ongoing forum for discussion of these issues. The reason for the conservative award is twofold. First the arbitrator can't propose some new elaborate system, since he or she is not
familiar with the current production system. Second, any new consultative arrangement must be motivated by the parties to the process.
Arbitration of this case would have been risky for all concerned, and that is probably the underlying reason why a mediated settlement was reached!