burden of proof in grievance arbitration

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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. The2Cf., 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).

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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

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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. IIWHAT

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 partyor 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 a5

4 Willett v. Rich, 142 Mass. 356, 7 N.E. 776 (1886). Kohlsaat v. Parkersburg and Marietta Sand Co., 266 Fed. 283, 284 (4th Cir.1920). It should be noted that the rule relates only to questions of fact, not to questions of law. Wieger v. Mutual Life Ins. Co., 205 Wis. 95, 236 N.W.

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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 theevidence."7 '

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 of534 (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).


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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 theformal '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 refusal14Justin, 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).

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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. 19 2 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


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IVGENERAL 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 iscompany. 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).

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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 well as 22d 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. VEFFECT 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, 27422d23

(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.


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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.224

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

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VION 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 practicemust 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, itbears 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 theof 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-

"3 Komaroff, North American Aviation, Inc., 22 Lab. Arb. 699 (1954).'3'5

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). Cornsweet, Mosaic Tile Co., 13 Lab. Arb. 949 (1950) ; Wyckoff, WestinghouseElectric Corp., 12 Lab. Arb. 462 (1949). Douglas, Merrill-Stevens Dry Dock & Repair Co., 10 Lab. Arb. 562 (1948).

36'7

Keough, National Tube Co., 9 Lab. Arb. 605 (1947).Pollard, Owl Drug Co., 10 Lab. Arb. 498 (1948).


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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.9 3

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 employeeCole, 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. 18438

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).

(1952)

(". . . the burden is on the person dealing with the agent to show

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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. VIIDISCHARGE 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 the4546

McCoy, International Harvester Co., 16 Lab. Arb. 775 (1951). "The defense is in the nature of limitations, which is always a matter of afproof that the grievance was filed with the company earlier than admitted is on the union." 4 Lab. Arb. at pp. 588-589.".

firmative 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

. . 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 almost5 3

invariably held that the

burden of proving "just cause" is on the employer. 54 As will appearobligation 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

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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-


[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).

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employer

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

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 esta0 blishes his guilt" 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).


[Vol. 43

pointed out above, 72 this is the approach adopted by most, but not all,7 3

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

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.7470 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. 7'2 Supra 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

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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 by75 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).


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an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved-in other words, 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:77McCoy,

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 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.

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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 primafacie 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 86fair 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 individualcase.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).

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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 causeat all. 93Q

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, 96 the burden of proving arbitrariness or caprice rests with the union, 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 theR. 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). :o0 supra notes 56-61. See Ooa Cf. supra note 78a.97

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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 properly imposed."

record, however, we have no alternative but to uphold the discipline as


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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. 15 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 obe0 1 6 dience would have placed him in jeopardy. Where a strike has occurred in violation of the labor agreement,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.103 Jaffee,

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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 0 he fulfilled his duty. 1 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 showingthat 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 3 plead and prove any claim of justification."1 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 committed107 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). 0 11 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.


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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 1 some similar standard. " 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 sustain a discharge, principally because of the economic effect of the dis12 ' 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,

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