AN ANALYSIS OF DISCHARGE ARBITRATIONS IN BRITISH COLUMBIA 1974 - 1977 by TOMI RICHARD EECKHOUT B.Sc, The University of B r i t i s h Columbia, 1974 A THESIS SUBMITTED TN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SCIENCE in THE FACULTY OF GRADUATE STUDIES (Business Administration) We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA March 1981 cjTomi Richard Eeckhout, 1981 In presenting t h i s thesis i n p a r t i a l f u l f i l m e n t of the requirements for an advanced degree at the University of B r i t i s h Columbia, I agree that the Library s h a l l make i t f r e e l y a v a i l a b l e f o r reference and study. I further agree that permission for extensive copying of t h i s thesis for s c h o l a r l y purposes may be granted by the head of my department or by his or her representatives. It i s understood that copying or p u b l i c a t i o n of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission. Department of Industrial Relations The University of B r i t i s h Columbia 2075 Wesbrook Place Vancouver, Canada V6T 1W5 D a t e March 16, 1981 ABSTRACT The safe and e f f i c i e n t operation of any enterprise i s to a certain extent dependent upon a d i s c i p l i n e d labour force. The action or threat of dismissing an employee is one of the most powerful tools employers can use in attempting to achieve that goal. However, i t can be abused and protection against i t s a r b i t r a r y application i s perhaps one of the most important benefits a worker secures from membership in a union. Union members dismissed for reasons considered to be unjust may appeal to a board of a r b i t r a t i o n to overturn management's d i s c i p l i n a r y action. Those employees who do not belong to a union have, by comparison, l i t t l e recourse against a r b i t r a r y dismissal. This thesis attempts to provide a comprehensive analysis of discharge a r b i t r a t i o n awards f i l e d in B r i t i s h Columbia during the years 1974-1977. A sample of 216 a r b i t r a t i o n awards was studied.• The results of that analysis are presented in two parts. F i r s t , a descriptive analysis of the parties (the grievors, the employers, and the a r b i t r a t o r s ) appearing in the awards i s presented. Secondly, an analysis of the a r b i t r a l d i s p o s i t i o n of the discharge cases studied i s undertaken. That analysis attempts to explain the o v e r a l l s t a t i s t i c a l outcome of the awards in r e l a t i o n to the c h a r a c t e r i s t i c s of the parties contained in the awards. The thesis produced results which are believed to have some important p r a c t i c a l implications. It was revealed that during the period of analysis employers in B r i t i s h Columbia were successful in having their discharge actions upheld by ar b i t r a t o r s in only one of three cases. This figure varied according to the labour force size of the dismissing firm. Employers of more than 5000 employees were about 50 percent more successful than employers of less than 500 employees in convincing a r b i t r a t o r s of the need to dismiss employees. A f a i l u r e to administer d i s c i p l i n e in a manner consistent with the theory of corrective d i s c i p l i n e appeared to be the major downfall of employers of r e l a t i v e l y few employees. It i s proposed, therefore, that i f feasible an educational program designed to the benefit of employers, unions, and the a r b i t r a t i o n process i t s e l f be introduced to employers to insure that d i s c i p l i n a r y action i s more properly administered. i v TABLE OF CONTENTS Chapter I. INTRODUCTION 1 11. RESEARCH METHODOLOGY 7 The Sample 7 Data Col l e c t i o n 9 III . THE PHILOSOPHICAL AND LEGISLATIVE APPROACHES TO INDUSTRIAL DISCIPLINE 14 The Concept of Corrective D i s c i p l i n e 14 The L e g i s l a t i v e Framework • 17 . Summary 22 IV. AN ANALYSIS OF THE PARTIES INVOLVED IN THE DISCHARGE ARBITRATION PROCESS 23 The Grievors 24 The Empl oye r s 36 The Arbitrators 47 Summary 50 V. AN ANALYSIS OF THE ARBITRAL DISPOSITION OF DISCHARGE ARBITRATIONS IN BRITISH COLUMBIA 52 Comparative Analysis 52 An Analysis of the Outcomes of Discharge Arbitrations in B r i t i s h Columbia 59 Summary 77 VI. SUMMARY AND CONCLUSIONS 80 SELECTED BIBLIOGRAPHY 86 APPENDICES 1. Occupational C l a s s i f i c a t i o n 89 2. Industrial C l a s s i f i c a t i o n ' 91 3. Chairmen of Arb i t r a t i o n Boards Appearing in the Sample Studied 93 V LIST OF TABLES Table 1. Sample Characteristics by Year 23 2. D i s t r i b u t i o n of the Grievors by Sex 25 3. D i s t r i b u t i o n of the Grievors by Occupation ...26 4. D i s t r i b u t i o n of the Grievors by Seniority 28 5. D i s c i p l i n a r y Record of the Grievors 30 6. D i s t r i b u t i o n of the Grievors by Union A f f i l i a t i o n 31 7. Cause for Dismissal 34 8. Occupation by Cause for Dismissal ..35 9. Industrial C l a s s i f i c a t i o n of the Grievors and the Employers 38 10. Discharge A r b i t r a t i o n Propensities by Industry ..40 11. D i s t r i b u t i o n of the Employers and the Grievors by Total Organizational Employment 46 12. Elapsed Time Patterns in Discharge Arbitrations by Board Composition 49 13. Comparative Results of Discharge A r b i t r a t i o n Outcomes 56 14. The A r b i t r a l Disposition of Discharge Arbitrations in B r i t i s h Columbia 56 15. The A r b i t r a l Disposition of Discharge Grievances in B r i t i s h Columbia by Year 60 16. Outcome by Employee Status 61 17. Outcome by Seniority 62 18. Outcome by D i s c i p l i n a r y Record 64 19. Outcome by Cause for Dismissal 66 20. Outcome by Occupation 68 v i 21. Outcome by A r b i t r a l Experience 69 22. Outcome by Board Composition 70 23. Outcome by Industry 71 24. Outcome by Organizational Employment 74 25. Organizational Employment by D i s c i p l i n a r y Record of the Grievant Sample 77 v i i ACKNOWLEDGEMENTS The completion of this thesis comes some four years after the project was i n i t i a t e d . Throughout that period I received the encouragement and support of many faculty members. I would l i k e in pa r t i c u l a r to thank my thesis chairman, Dr. N.A. H a l l , for the many hours he spent l i s t e n i n g , reading, and providing valuable comment. I would also l i k e to thank Dr. A. Ponak, Mr. D.C. McPhillips, Dr. C. Fraser, and Dr. M. Thompson for the time and e f f o r t they spent while members of my thesis committee. F i n a l l y , I would l i k e to thank the University for making i t s computer f a c i l i t i e s available to me. Without t h i s assistance the project would not have proceeded. 1 CHAPTER I INTRODUCTION Among the more v i s i b l e signs of trade union a c t i v i t y are r e p o r t s of newly n e g o t i a t e d wage i n c r e a s e s . That unions are able to provide t h e i r members with wages r e l a t i v e l y higher than those of unorganized labour i s , however, a q u e s t i o n open to debate. 1 And yet, because of the very conspicous nature of wage se t t l e m e n t s , some of the more b a s i c , undisputed b e n e f i t s of union membership, o f t e n appear to be overlooked. P r o t e c t i o n a g a i n s t a r b i t r a r y d i s c harge stands out as a p a r t i c u l a r l y good example. Unorganized labour i n Canada has p r a c t i c a l l y no recourse a g a i n s t a r b i t r a r y d i s m i s s a l . 2 Union members dism i s s e d f o r reasons c o n s i d e r e d u n f a i r may, however, have t h e i r case appealed to a board of a r b i t r a t i o n under whose a u t h o r i t y management's d e c i s i o n to d i s m i s s may be overturned. Access to such an appeal procedure r e p r e s e n t s a very r e a l b e n e f i t because the consequences of a d i s m i s s a l can be f a r r e a c h i n g . The break i n s e r v i c e r e s u l t s in the e l i m i n a t i o n of ^ e e f o r example H.G. Lewis, "The E f f e c t s of Unions on I n d u s t r i a l Wage D i f f e r e n t i a l s , " i n Aspects of Labor Economics ( P r i n c e t o n : Univ. of P r i n c e t o n P r e s s , 1962), pp. 319-341; A l b e r t Rees, The Economics of Trade Unions (Chicago: Univ. of Chicago P r e s s , 1962), pp. 69-96. 2See Paul M a l l e s , Canadian Labour Standards i n Law, Agreement, and P r a c t i c e (Ottawa: Economic C o u n c i l of Canada, 1976), p. 86. . 2 accumulated seniority and the benefits pegged to that measure of service. The potential for f i n a n c i a l d i f f i c u l t i e s looms large should alternative employers become aware of the dismissal and refuse to offer employment because of perceived d i s c i p l i n a r y r i s k s . The seriousness of that problem may be magnified with the existence of a family to care for, debts to pay, and a tight labour market. No less important may be the psychic c o s t s -s o c i a l embarrassment, de m o r a l i z a t i o n — r e s u l t i n g from a dismissal. It is not surprising then, that within the realm of i n d u s t r i a l d i s c i p l i n e , discharge has come to be equated with economic c a p i t a l punishment. This, no doubt, was Lloyd Reynold's reason for concluding that, "Protection against arb i t r a r y discharge is probably the most important single benefit which the worker secures from trade unionism. It does more than anything else to make him a free c i t i z e n in the plant." 3 Interest in this thesis was sparked by the observation that in less than one-third of those dismissals taken to a r b i t r a t i o n in B r i t i s h Columbia were employers' d i s c i p l i n a r y actions upheld. This finding appeared to question the a b i l i t y of managers in B r i t i s h Columbia to administer d i s c i p l i n e in a manner consistent with the expectations of a r b i t r a t o r s . A review of the l i t e r a t u r e served only to strengthen that contention. Studies conducted in the United States and the Province of Ontario demonstrated that employers in those j u r i s d i c t i o n s were approximately 50 percent more successful than their B r i t i s h 3Llyod G. Reynolds, Labor Economics and Labor Relations, 5th' ed. (Englewood C l i f f s , N.J.: Prentice-Hall, 1965), p. 208. 3 Columbia counterparts in having dismissals upheld by arbi t r a t o r s . The l i t e r a t u r e search also brought attention to the fact that research into i n d u s t r i a l d i s c i p l i n e in general, and discharge in p a r t i c u l a r , has remained a r e l a t i v e l y neglected area of analysis. This is somewhat surprising given the prominent position grievance a r b i t r a t i o n holds in North American i n d u s t r i a l r e l a t i o n s , and the sheer numerical significance of discharge a r b i t r a t i o n s . 4 Those studies that do exist are rather narrow in scope. Research has been channelled primarily in the dir e c t i o n of examining management's record before a r b i t r a t i o n boards. The importance of such queries i s not in question. But, there are other more basic aspects of discharge cases that have remained unexamined. The objective of th i s thesis i s to examine those unexplored areas through a comprehensive analysis of discharge a r b i t r a t i o n awards f i l e d in the Province of B r i t i s h Columbia during the years 1974 through 1977. The project w i l l proceed along two fronts. F i r s t , a descriptive analysis w i l l be undertaken. The following questions were asked: 1. What was the d i s t r i b u t i o n of the grievor sample on the basis of sex? It was hypothesized that a disproportionately large number of the grievors would be males. 2. What was the occupational compostion of the grievant sample? Blue c o l l a r workers, i t was hypothesized, would account for the overwhelming majority of the grievors. 3. Were the grievors of many or few years seniority? It was 4Discharge a r b i t r a t i o n s currently account for approximately 20 percent of a l l grievance a r b i t r a t i o n s in B r i t i s h Columbia, a figure consistent with findings in other North American j u r i s d i c t i o n s . 4 hypothesized that the vast majority of the grievors would have few years s e n i o r i t y . 4. What was the d i s c i p l i n a r y record of the grievors at the time of the discharge? 5. To what unions did the grievors belong? 6. How many of the grievors held o f f i c i a l union positions? 7. What were the major causes for dismissal? 8. Did any relationship exist between occupational categories and causes for dismissal. It was hypothesized that white c o l l a r workers would be more apt to be dismissed for reasons related to how their work was performed. For blue c o l l a r workers this would not be the case. 9. What was the frequency of dismissals across industries? It was hypothesized that certain i d e n t i f i a b l e industries would generate a disproportionately high share of a l l the dismissals contained in the sample. 10. What was the labour force size of the dismissing organ izat ions? 11. What impact did t r i p a r t i t e boards of a r b i t r a t i o n as opposed to sole a r b i t r a t o r s have on the time required to s e t t l e arbitrated dismissals? Answers to these and similar questions w i l l f u l f i l l one objective of the thesis. Attention w i l l then s h i f t toward providing an explanation for the seemingly low percentage of dismissals upheld by a r b i t r a t o r s in t h i s province. The desired goal was to isolate those factors which appeared most instrumental in producing the set of a r b i t r a l outcomes observed. After a preliminary scanning of the sample of awards, a review of the l i t e r a t u r e , and discussions with committee members, a variety of factors to be used in the analysis were decided upon. In a few instances the source of the relationships studied had their roots in the l i t e r a t u r e . However, because of the paucity of l i t e r a t u r e in this area, i t seemed appropriate to study previously unexplored relationships which also appeared to be 5 s i g n i f i c a n t . Listed below are the variables that were employed in attempting to explain the pattern of a r b i t r a l outcomes observed in B r i t i s h Columbia: 1. The grievors' employment status. Probationary employees were, as a group, expected to have had a greater percentage of their dismissals upheld compared to those employees who had attained seniority rights. 2. The grievors' s e n i o r i t y . It was hypothesized that an inverse relationship would exist between the grievors' seniority and the l i k e l i h o o d of a dismissal being upheld. 3. The grievors' d i s c i p l i n a r y records. It was hypothesized that the more tarnished a grievor's work record the less l i k e l y a reinstatement order would be awarded. 4. The cause for dismissal. As a general rule a r b i t r a t o r s demand a high degree of proof before upholding dismissals related to work performance. It was hypothesized, therefore, that employees dismissed for reasons related to work performance would stand a better than average chance of being reinstated. 5. The grievors' occupations. There was no a p r i o r i reason to suspect the existence of a relationship between the a r b i t r a l d i s p o s i t i o n of discharge grievances and the grievors' occupations. 6. The experience of a r b i t r a t o r s . A test was made to determine whether the decisions of those a r b i t r a t o r s widely used d i f f e r e d to a s i g n i f i c a n t degree from those ar b i t r a t o r s used sparingly. 7. The composition of the a r b i t r a t i o n board. A test was conducted to determine whether the decisions of sole a r b i t r a t o r s d i f f e r e d s i g n i f i c a n t l y from those of t r i p a r t i t e boards of a r b i t r a t i o n . 8 . The i n d u s t r i a l c l a s s i f i c a t i o n of the industry from which the grievors were dismissed. There was no a p r i o r i reason to expect that t h i s variable would be instrumental in explaining the pattern of outcomes observed. 9. The labour force size of the dismissing organization. It was hypothesized that the larger the organization the more l i k e l y management's decision to dismiss would be upheld. The greater l i k l i h o o d of finding professional labour r e l a t i o n p r a c t i t i o n e r s in large organizations formed the basis of t h i s hypothesis. Five chapters follow t h i s , the introduction. Chapter two i s concerned with the methodological aspects of the study. The concept of corrective d i s c i p l i n e i s discussed in chapter three 6 as is the l e g i s l a t i v e framework within which labour a r b i t r a t i o n in B r i t i s h Columbia operates. Chapter four presents the descriptive analysis of the parties involved in the discharge a r b i t r a t i o n process. An analysis of the a r b i t r a l dispostion of discharge a r b i t r a t i o n s in B r i t i s h Columbia appears in chapter f i v e . Conclusions reached are discussed in chapter six. 7 CHAPTER II RESEARCH METHODOLOGY The objective of this chapter is to f i r s t discuss the c r i t e r i a used in selecting the a r b i t r a t i o n awards considered most appropriate for this study, and to then describe the information which was sought from those awards. The Sample The period of analysis in thi s study is confined to the years 1974 through 1977. Three c r i t e r i a were used in a r r i v i n g at that decision: 1. The a v a i l a b i l i t y of a large number of awards. 2. Choosing a period during which l e g i s l a t i v e conditions could be considered constant. 3. Selecting a sample as representative as possible of the t o t a l population of dismissals. The a v a i l a b i l i t y of awards prior to 1974 was li m i t e d . It was not u n t i l that year with the introduction of the Labour Code of B r i t i s h Columbia that a r b i t r a t o r s became l e g a l l y obligated to furnish a written copy of their award. Although Western Labour Ar b i t r a t i o n Cases began i t s coverage of awards in 1966, i t was considered methodologically inadvisable to rely on t h i s source. The awards contained in that publication have been edited and could suffer from omissions of fact important for t h i s study, but not necessarily for the readers of W.L.A.C. Moreover, in 8 v i o l a t i o n of c r i t e r i a three above, the number of awards reviewed in W.L.A.C. represents a sample of unknown proportion to the t o t a l population of discharge awards. With regards to the second c r i t e r i o n , the Labour Code in marked contrast to e a r l i e r l e g i s l a t i o n , granted a r b i t r a t o r s the power of substitution in dismissal cases. To attempt to analyze the outcome of awards governed by d i f f e r e n t l e g i s l a t i v e conditions would be i l l o g i c a l . While admittedly of short duration the period 1974-1977 did, nevertheless, offer a universe of over 200 a r b i t r a t i o n awards. A l l discharge awards recorded in the Ministry of Labour's Annual Index of Ar b i t r a t i o n Awards for the years 1974-1977 were included in the sample with the following exceptions: 1. Discharge a r b i t r a t i o n s governed by provisions other than those of the Labour Code of B r i t i s h Columbia. 2. Grievances which were abandoned at the a r b i t r a t i o n hearing, or considered by the a r b i t r a t o r to be untimely. 3. Awards dealing with managerial actions not d i s c i p l i n a r y in the s t r i c t e s t sense of the word. F a l l i n g in t h i s category were contested quits, dismissals due to lack of work, and dismissals a r i s i n g out of mental or physical d i s a b i l i t i e s of an employee. 4. Eight unattainable awards for the year 1977. Ideally, t h i s study would consist of a l l dismissals: those which were grieved and those l e f t uncontested, those which were sett l e d or abandoned at some point in the grievance procedure, and those which were taken to a r b i t r a t i o n . Unfortunately, only the number of dismissals that went the a r b i t r a t i o n route are known with certainty. What proportion this category comprises of a l l dismissals remains unknown. The development of an. hypothesis in t h i s regard i s even a d i f f i c u l t task. The number 9 of dismissals which reach a r b i t r a t i o n depends largely on how discriminating unions wish to be in deciding the merits of a par t i c u l a r case. 1 There i s some room for variation here. There are surely some unions which as a matter of general policy grant to a l l discharged employees the right to have their grievance brought before a board of a r b i t r a t i o n . There are other unions which may, quite j u s t i f i a b l y , proceed to a r b i t r a t i o n only under special circumstances. Given the legal obligation unions have to f a i r l y represent bargaining unit members one would suspect that the merits of a grievance would have 'to be noticeably lacking before a grievance would be allowed to die in the grievance procedure. The extent to which this is true, however, is simply unknown. Thus, a caveat is in order. The a r b i t r a t i o n awards being analyzed may or may not r e f l e c t the general c h a r a c t e r i s t i c s of the population of a l l dismissals. Care must be taken in the interpretation of results not to extend any conclusions beyond the boundaries of the sample being analyzed without f i r s t considering the factors discussed above. Data Co l l e c t i o n To undertake the proposed analysis an attempt was made to c o l l e c t the following data: 1. The sex of the grievor. 2. The seniority of the grievor. 3. The occupation of the grievor. (The occupational ^ o r some insights into that process see Donald J. Peterson, "Why Unions go to A r b i t r a t i o n , " Personnel, 48, No.4 (1971), 44-47. 10 c l a s s i f i c a t i o n scheme used is described in Appendix 1.) 4. Whether the grievor held any o f f i c i a l union position. 5. The cause for dismissal. Where multiple reasons were given by the employer, the cause upon which the case hinged was the one recorded. 6. The union and l o c a l named in the award. 7. The number of ( B r i t i s h Columbia) members in the union and l o c a l named in the award. 8. The name of the a r b i t r a t o r . 9. The composition of the a r b i t r a t i o n board ( i . e . single a r b i t r a t o r or t r i p a r t i t e board). 10. Whether in the case of multi-member boards of a r b i t r a t i o n an unanimous decision was reached. 11. The a r b i t r a t i o n board's decision. Outcomes were c l a s s i f i e d as follows: discharge upheld, reinstatement with no back pay ( i . e . a dismissal reduced to a suspension), reinstatement with p a r t i a l back pay ( i . e . a dismissal reduced to a period of suspension with the employer reimbursing the grievor for any earnings l o s t between the l a s t day of that suspension and the date of the a r b i t r a t o r ' s award), and reinstatement with f u l l back pay. 12. The date of discharge. 13. The elapsed time (in days) between the date of discharge and the date of the f i r s t a r b i t r a t i o n hearing. 14. The number of a r b i t r a t i o n hearings and the period of time (in days) over which the hearings occurred. 15. The elapsed time between the l a s t a r b i t r a t i o n hearing and the date on which the parties were n o t i f i e d of the board's 11 decision. Unless otherwise sp e c i f i e d in the written decision, the date of n o t i f i c a t i o n was assumed to be the date of the award. 16. The sector of the economy ( i . e . public or private) in which the employer operated. Included in the public sector were the pro v i n c i a l government, crown corporations, municipal governments, and public health f a c i l i t i e s . 17. The i n d u s t r i a l c l a s s i f i c a t i o n of the employer named in the award. (A detailed description of the i n d u s t r i a l c l a s s i f i c a t i o n scheme adopted is provided in Appendix 2.) 18. The labour force size of the employer named in the award. The focus here was on the number of employees in the t o t a l organization. Thus, the number of individuals employed in a l l of MacMillan Bloedel's operations was recorded regardless of the size of the labour force at the s i t e at which the dismissal arose. Employment by t o t a l organzation was chosen for two reasons. On p r a c t i c a l grounds the number of employees by t o t a l organization was by-and-large the only l e v e l at which employment data was^available. Theoretical concerns also suggested that employment by t o t a l organization, rather than plant, was more suitable. Employment figures were to serve primarily as a gauge to measure the degree of managerial sophistication in matters of i n d u s t r i a l r e l a t i o n s . There was assumed to be a direct r e l a t i o n s h i p between the number of employees and i n d u s t r i a l r e l a t i o n s expertise. It was further assumed that dismissals made at the plant l e v e l would be made in compliance with an ove r a l l corporate p o l i c y . Therefore, t o t a l organizational 12 employment was assumed to be the l e v e l best suited to gauging the degree of competency in matters of labour r e l a t i o n s . Three sources were r e l i e d upon in obtaining estimates of employment. The most valuable of these was the Dun and Bradstreet publication Canadian Key Business Directory. The remaining estimates were found in the awards themselves or through telephone conversations with the employers named in the awards. 19. Whether the grievor's d i s c i p l i n a r y record was clean or whether the grievor had at some previous time been d i s c i p l i n e d . If the l a t t e r were true, the e a r l i e r d i s c i p l i n e was categorized as either being for an offense related or unrelated to the misconduct which prompted the dismissal. In both cases the s p e c i f i c type of d i s c i p l i n e imposed was c l a s s i f e d as a verbal warning, a written warning, or a suspension. Unless the s p e c i f i c s of the grievor's previous d i s c i p l i n a r y record were e x p l i c i t l y referred to in the award the information was recorded as missing. No attempt was made to categorize prior d i s c i p l i n a r y actions from general statements to the effect that an individual's work record was poor, f a i r , or above or below average. In addition, d i s c i p l i n e imposed but in the process of being grieved was not recorded. The c l a s s i f i c a t i o n and coding of the data for computer analysis proved to be a troublesome task. One of the foremost problems was that of choosing c l a s s i f i c a t i o n schemes which were both r i c h in d e t a i l and at the same time r e l a t i v e l y easy to develop and apply. There were instances where the benefits to be derived from detailed c l a s s i f i c a t i o n schemes seemed miniscule 13 in r e l a t i o n to the e f f o r t required to develop them. In these cases more streamlined c l a s s i f i c a t i o n schemes were adopted. For example, no provisions were made to record a l l the forms in which an employer may have d i s c i p l i n e d an employee. Only the most basic system of d i s c i p l i n a r y p e n a l t i e s — a verbal warning followed by a written warning followed by a suspension—was adopted. Si m i l a r l y , the decisions of ar b i t r a t o r s were recorded only i f they could be placed into one of the four outcome categories developed. Obviously, the transformation of the data contained in the awards into a machine readable form resulted in some relevant information being l e f t unrecorded. This is a common problem in exercises of this type. However, there was no reason to believe that those exclusions were s i g n i f i c a n t enough to a l t e r the overall findings of thi s thesis. 14 CHAPTER 3 THE PHILOSOPHICAL AND LEGISLATIVE APPROACHES TO INDUSTRIAL DISCIPLINE The central concern in this chapter is to outline the l e g i s l a t i v e conditions governing the a r b i t r a t i o n of discharge grievances in B r i t i s h Columbia. The chapter begins with a discussion of the current philosophy of d i s c i p l i n e within an i n d u s t r i a l environment, which i s intended to serve as a backdrop against which the development of l e g i s l a t i v e conditions can be better understood. After describing the appropriate l e g i s l a t i o n , attention w i l l turn to a description of how a r b i t r a t o r s are expected to apply the law. The Concept of Corrective D i s c i p l i n e The safe and e f f i c i e n t operation of any goods or service producing concern i s to a certain extent dependent upon a d i s c i p l i n e d labour force. Human nature, being what i t i s , w i l l always guarantee that there is a small group of employees who are chronically l a t e , negligent in their duties, insubordinate to t h e i r supervisors, and so f o r t h . Failure to subject employees of t h i s sort to some form of d i s c i p l i n e may lead to a loss of output and sales. A program of employee d i s c i p l i n e allows an employer to maintain i n d u s t r i a l order by setting l i m i t s on individual 15 behaviour. T r a d i t i o n a l l y , managers viewed i n d u s t r i a l d i s c i p l i n e within a punishment oriented framework: Transgressions were guarded against by open or t a c i t threats of punishment in some form. The fear motive was the one p r i n c i p a l l y appealed to, and submissiveness and d o c i l i t y were looked upon as cardinal virtues. Punishment when i t came was swift, firm, not to be appealed from. 1 These r e t r i b u t i o n i s t aspects of i n d u s t r i a l d i s c i p l i n e have found no home within the c o l l e c t i v e bargaining era of i n d u s t r i a l r e l a t i o n s . The dominant theme of i n d u s t r i a l d i s c i p l i n e has become one of correction. Simply stated, the p r i n c i p l e of corrective d i s c i p l i n e requires that managers apply progressively stronger doses of d i s c i p l i n e to an errant employee u n t i l i t can be firmly established that lesser penalties f a i l e d to evoke the desired response. At that point discharge becomes the appropriate penalty. The most overriding aspect of the correctional theme is that d i s c i p l i n e , including dismissal, i s not punitive. As a noted author has stated: Discharge, catastrophic as i t may be, does not constitute punishment. Concededly i t is sacrilegious to oppose such time-honored locutions as "the ultimate sanction," "the f i n a l penalty," and " i n d u s t r i a l c a p i t a l punishment." But the fact is that a worker is f i r e d because the employer has decided, r i g h t l y or wrongly, that he i s not getting what he bargained for xOrdway Tead, Human Nature and Management (New York: McGraw-H i l l , 1933), p.271. The author went on to explain the need for an al t e r n a t i v e approach to i n d u s t r i a l d i s c l i p l i n e : "The theory on which penalites should be devised and administered should be one of constructive correction and not of vindictiveness." This appears to be one of the f i r s t references to i n d u s t r i a l d i s c i p l i n e as a corrective t o o l . 16 and that he wants to close out the employment re l a t ionship. 2 The concept of corrective d i s c i p l i n e finds i t s underpinnings in the b e l i e f that a dismissal can be costly not only to an employee, but to an employer as well. The employer stands to lose investments in the dismissed employee in the form of recruitment, selection, and training expenditures. Less tangible, but c e r t a i n l y important, i s the effect the dismissal may have on the rest of the employer's work force. These costs need not always be realized, however, i f through a system of progressive d i s c i p l i n e the errant employee is allowed to learn from his mistakes and to apply those lessons within the same organization. Only for the most serious of offenses (e.g. theft) might a program of progressive d i s c i p l i n e be abandoned. Here, summary discharge may be required to deter other employees from engaging in similar a c t i v i t i e s . These arguments, in support of the doctrine of corrective d i s c i p l i n e , have a heavy th e o r e t i c a l content. There are, however, many positive, p r a c t i c a l benefits to administering corrective d i s c i p l i n e : One of the advantages to adopting a corrective d i s c i p l i n a r y approach i s that i t enables the parties to know where they stand with each other. An employee who i s subject to corrective d i s c i p l i n e knows that aft e r receiving a warning he may receive a suspension and that after a suspension he may be discharged i f he repeats an offense. Further, where the employer maintains a system 2Arthur M. Ross, "Discussion" of Sanford H. Kadish, "The Criminal Law and Industrial D i s c i p l i n e as Sanctioning Systems:Some Comparative Observations," in Labor A r b i t r a t i o n - Perspectives and Problems. Proceedings of the Seventeenth Annual Meeting. National Academy of Arb i t r a t o r s . (Washington, D.C.: Bureau of National A f f a i r s , 1964), p. 147. 17 of d i s c i p l i n e an employee may grieve when .discipline is imposed, which prevents stale incidents from being resurrected on a subsequent occasion. In t h i s type of system an employee is given the opportunity to clear his record through the grievance a r b i t r a t i o n procedure at the time of the incident and i f he is not successful he is put on notice that his past record w i l l be held against him. 3 F i n a l l y , i t can not be said that the correctional theme is accepted wholeheartedly by a l l a r b i t r a t o r s . One of the more e x p l i c i t statements in t h i s regard i s contained in Pacif ic Western A i r l i n e s and Canadian A i r l i n e and Employers' Association, where the a r b i t r a t o r stated: One defect of the "correctional d i s c i p l i n e " doctrine is that i t moves correctional theory from the criminal process to the i n d u s t r i a l . There are trained personnel and f a c i l i t i e s in the criminal process which are not available in the i n d u s t r i a l process, and in situations where the employee's problems are detrimental to fellow employees, these fellow employees are being asked to be unpaid probation o f f i c e r s , a job for which they did not ask and for which they are not being p a i d . 4 The L e g i s l a t i v e Framework The Labour Code of B r i t i s h Columbia, 5 in sections 92 through section 112, s p e l l s out the procedures governing the a r b i t r a t i o n of rights disputes. Sections 93(1) and 98(d) are of the utmost importance to a r b i t r a t o r s faced with the task of s e t t l i n g contested dismissals. Section 93(1) [rep. & sub., S.B.C. 1975, c.33, s.23] states: 3North York General Hospital .and C.U.G.E. (1973), 5 L.A.C. (2d) 46 (Shime). Unreported, (J.M. Maclntyre), July 22, 1976. 5S.B.C. 1973 (2nd Sess.), c."l22. 18 93.(1) Every c o l l e c t i v e agreement s h a l l contain a provision governing the dismissal or d i s c i p l i n e of an employee bound by the agreement, and that provision or another provision, s h a l l require that the employer have a just and reasonable cause for the dismissal or d i s c l i p l i n e of an employee; but nothing in t h i s section s h a l l prohibit the parties to a c o l l e c t i v e agreement from including therein a d i f f e r e n t provision for employment of certain employees on a probationary basis. In section 98(d) |rep. & sub., S.B.C. 1975, c.33, s.27] of the Code the remedial powers of an a r b i t r a t i o n board are described: 98. For the purposes set out in section 92, an a r b i t r a t i o n board has a l l the authority to provide a f i n a l and conclusive settlement of a dispute a r i s i n g under the provisions of a c o l l e c t i v e agreement, and without l i m i t i n g the generality of the foregoing has authority: (d)to determine that a dismissal or d i s c i p l i n e i s excessive in a l l the circumstances of the case and substitute such other measures as appears just and equitable. The authority conferred upon a r b i t r a t i o n boards is found in section 92, where the policy of the Code is discussed. The relevant sections state: 92.(2) It is the intent and purpose of t h i s part that i t s provisions constitute a method and procedure for determining grievances and resolving disputes under the provisions of a c o l l e c t i v e agreement without resort to stoppages of work. (3)An a r b i t r a t i o n board s h a l l , in furtherance of the intent and purposes expressed in subsection (2), have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties thereto under the terms of the agreement, and s h a l l apply p r i n c i p l e s consistent with the i n d u s t r i a l relations policy of t h i s Act, and is not bound by a s t r i c t legal interpretation of the issue in dispute. The significance of section 93(1) is twofold. F i r s t , i t outlines the employer's obligations with respect to the dismissal of employees. The l e g i s l a t i o n requires employers to "...have a just and reasonable cause for the dismissal or d i s c i p l i n e of an employee;..." It i s noteworthy in t h i s 19 connection that under the common law of master and servant an employer could, with reasonable notice, or with pay in l i e u of notice, dismiss an employee for any reason. The second salient feature of section 93(1) i s the reference made to the standards the parties to a c o l l e c t i v e agreement may adopt to govern the dismissal of probationary employees. In i t s o r i g i n a l form, section 93(1) contained no mention of t h i s class of employee. The question arose in Cassiar Asbestos Corporation and the United Steelworkers of America, Local 65366 as to whether dismissals of probationary employees were in fact a r b i t r a b l e . The 1975 ammendments to section 93 followed the Board's affirmative r e p l y . 7 In amended form section 93(1) allows the parties to a c o l l e c t i v e agreement to prescribe a lesser standard than "just and reasonable cause" to apply to employees of a probationary status. I f , however, the contract i s s i l e n t in t h i s regard, a r b i t r a t o r s are free to construct a probationary standard of their own l i k i n g . What that standard should be i s a subject of disagreement among a r b i t r a t o r s . 8 There appears to be three basic approaches an a r b i t r a t o r can take.' At one extreme i s the agrument that those 'B.C.L.R.B. Decision No. 79/74 (1974). 7The Board's decision was reaffirmed in a subsequent appeal: B.C.L.R.B. Decision No. 165/74. "See Dalton L. Larson, "Probationary Employees," in Grievance A r b i t r a t i o n : A Review of Current Issues, ed. M.A. Hickling (Vancouver, B.C.: The Institute of Industrial Relations, 1977), pp. 77-100. 'See: B r i t i s h Columbia Telephone Company and Telecommunication Workers Union, ( j . Weiler). As yet unreported but recorded as decision A-163/77 by the A r b i t r a t i o n and Special Services Branch of the Ministry of Labour. 20 standards a p p l i c a b l e to r e g u l a r employees ought s i m i l a r l y be a p p l i e d to p r o b a t i o n a r y employees. The r e c i p r o c a l argument s t a t e s that employees of a p r o b a t i o n a r y s t a t u s may be d i s m i s s e d without reason. Between these two extremes l i e s the view that " j u s t cause" but to a l e s s e r degree' than that a p p l i e d to o r d i n a r y employees i s the most accep t a b l e standard. S e c t i o n 98 of the Labour Code int r o d u c e d a new dimension to grievance a r b i t r a t i o n i n B r i t i s h Columbia. The predecessor of the Code, the Labour R e l a t i o n s A c t , 1 0 denied a r b i t r a t o r s the power of s u b s t i t u t i o n i n d i s m i s s a l and d i s c l i p l i n e cases. Consequently, a r b i t r a t o r s were allowed only two courses of a c t i o n when d e c i d i n g d i s c h a r g e cases. A d i s m i s s a l c o u l d e i t h e r be upheld, or a l t e r n a t i v e l y , the p e n a l t y c o u l d be revoked and the g r i e v o r r e i n s t a t e d , with t o t a l compensation f o r wages l o s t a r i s i n g out of the improper d i s m i s s a l . With the enactment of the Labour Code a r b i t r a t o r s were, with one e x c e p t i o n , granted the power of s u b s t i t u t i o n . 1 1 Only i f a c o l l e c t i v e agreement s p e c i f i e d those types of employee misconduct f o r which d i s c h a r g e was warranted c o u l d a board's power of s u b s t i t u t i o n be 1 0R.S.B.C. 1960, c. 205. J 1 T h e l e g i s l a t i v e d e c i s i o n to grant a r b i t r a t o r s the power of s u b s t i t u t i o n removed the l a s t v e s t i g e s of the common law of master and servant which had s u r f a c e d i n Port Arthur S h i p b u i l d i n g Co. v. A r t h u r s et a l . (1968), 70 D.L.R. (2d). In that case the Supreme Court of Canada overturned a d e c i s i o n of the O n t a r i o Court of Appeal by r u l i n g t h a t i f employee d i s c i p l i n e was j u s t i f i e d the form chosen by management was not s u b j e c t to review by a board of a r b i t r a t i o n . By s t a t u t o r y reform that r u l i n g has now been ove r t u r n by a l l Canadian l e g i s l a t u r e s . 21 usurped. 1 2 This one exception appears to have been removed, however, as a result of 1975 ammendments to the Code. One a r b i t r a t o r , at least, has interpreted the amended section 98 as having precisely that e f f e c t : It should be understood that there is no longer a di s c r e t i o n in management in B r i t i s h Columbia to create an offense for which dismissal i s mandatory. A l l d i s c i p l i n e imposed in B r i t i s h Columbia i s subject to the overriding discretion set forth in section 98 of the Labour Code. 1 3 This then i s the l e g i s l a t i v e context in which ar b i t r a t o r s in B r i t i s h Columbia have been asked to s e t t l e discharge grievances. But what of the procedures to be followed in discharge arbitrations? In W.M. Scott & Company Ltd. and Canadian Food and A l l i e d Workers Union, Local P-162, 1 4 the Labour Relations Board of B r i t i s h Columbia very c a r e f u l l y outlined the approach a r b i t r a t o r s should take in deciding discharge a r b i t r a t i o n s . To use the Board's words: ...arbitrators should pose three d i s t i n c t questions in the t y p i c a l discharge grievance. F i r s t , has the employee given just and reasonable cause for some form of d i s c i p l i n e by the employer? If so, was the employer's decision to dismiss the employee an excessive response in a l l the circumstances of the case? F i n a l l y , i f the a r b i t r a t o r does consider discharge excessive what alte r n a t i v e measure should be substituted? The Board went on to emphasize that in answering the second question an a r b i t r a t o r must conduct a p a r t i c u l a r l y 1 2R.B. Bird, "Substitution of Penalties Under the Labour Code of B.C.," in Grievance A r b i t r a t i o n : A Review of Current Problems, ed. M.A. Hickling(Vancouver, B.C.: The Institute of Industrial Relations, 1977), p. 66. 1 3Craigmont Mines Limited and United Steelworkers of America, Local 6523 (H.A. Hope), unreported. 14B.C.L.R.B. Decision No. 46/76. 22 rigorous evaluation of the employer's dismissal decision. A number of guidelines, now widely referred to by a r b i t r a t o r s in B r i t i s h Columbia, were offered for assistance: (i) How serious is the immediate offense of the employee which precipitated the discharge (for example, the contrast between theft and absenteeism)? ( i i ) Was the employee's conduct premeditated, or r e p e t i t i v e ; or instead, was i t a momentary and emotional aberration, perhaps provoked by someone else (for example, in a fight between two employees)? ( i i i ) Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a r e l a t i v e l y free d i s c i p l i n a r y history? (iv) Has the employer attempted e a r l i e r and more moderate forms of corrective d i s c i p l i n e of t h i s employee which did not prove successful in solving the problem (for example, of persistent lateness or absenteeism)? (v) Is the discharge of t h i s individual employee in accord with the consistent p o l i c i e s of the employer or does i t appear to single out t h i s person for a r b i t r a r y and harsh treatment (an issue which seems to arise p a r t i c u l a r l y in cases of d i s c i p l i n e for wildcat str i kes)? Summary This chapter has discussed the l e g i s l a t i v e rules of discharge a r b i t r a t i o n , the philosophical roots of that l e g i s l a t i o n , and some of the procedural r e s p o n s i b i l i t i e s the l e g i s l a t i o n imposes on a r b i t r a t o r s . An important by-product of that analysis has been to put into perspective the approach employers in B r i t i s h Columbia should adopt when administering d i s c i p l i n e . Based on the decisions of a r b i t r a t o r s in t h i s province, there is reason to believe that many employers are f a i l i n g to administer d i s c i p l i n e in accordance with the intentions of the Labour Code. Whether any evidence can be gathered in support of that statement w i l l receive attention in chapter f i v e . 23-CHAPTER IV AN ANALYSIS OF THE PARTIES INVOLVED IN THE DISCHARGE ARBITRATION- PROCESS In t h i s chapter a number of c h a r a c t e r i s t i c s of the four main participants in the a r b i t r a t i o n process—the grievors, employers, unions, and a r b i t r a t o r s — w i l l be discussed. Before turning to that analysis, a description of the sample i t s e l f i s in order. As shown in table 1 the sample consisted of 216 ar b i t r a t i o n awards, which in turn dealt with 232 grievors. A t o t a l of 163 employers operating at 181 si t e s throughout the province were responsible for the d i s c i p l i n a r y action taken. Of the grievors, 219 had seniority rights while 13 grievors were of a probationary status at the time of dismissal. TABLE 1 Sample Charact e r i s t i c s by Year YEAR NUMBER OF AWARDS NUMBER OF GRIEVORS 1974 35 37 1975 58 65 1976 60 66 1977 63 64 TOTAL 216 232 24 Perhaps the most notable aspect of table 1 i s the dramatic increase in the number of a r b i t r a t i o n s between 1974 and 1975, and the gradual upward trend thereafter. That trend i s even more pronounced i f one r e c a l l s that the sample omits eight awards for the year 1977. The tremendous increase in the frequency of a r b i t r a t i o n s was to a large extent due to an increased number of a r b i t r a t i o n s in the public sector. Only 5.4 percent of the grievors came from the public sector in 1974. For the remaining years of the analysis this figure was in the v i c i n i t y of 20 percent. It is interesting to note that 1974 marked the year that c i v i l servants in B r i t i s h Columbia were granted formal c o l l e c t i v e bargaining rights. It appears that the expansion of bargaining rights to employees in the public sector is making i t s presence f e l t in yet another area of i n d u s t r i a l r e l a t i o n s . The Grievors Under th i s heading the sex, occupation, s e n i o r i t y , d i s c i p l i n a r y record, cause for dismissal, union a f f i l i a t i o n , and any union postions held by the sample of grievors w i l l be described. D i s t r i b u t i o n of the Grievors by Sex Roughly 25 percent of the union members in the province of B r i t i s h Columbia during the period 1974-1977 were females. 1 Estimated from figures contained in the annual publications of the B.C. Labour Directory. 25 However, only 15 percent of the grievances were taken by females. The reasons for the male domination of the sample are p o t e n t i a l l y many. It may simply be a c h a r a c t e r i s t i c of this p a r t i c u l a r sample. On the other hand, the results may TABLE 2 Dis t r i b u t i o n of the Grievors by Sex RELATIVE GRIEVOR'S ABSOLUTE FREQUENCY SEX FREQUENCY (PERCENT) Female 34 14.7 Male 198 85.3 Total 232 100.0 accurately r e f l e c t a pattern common to any sample of discharged employees regardless of j u r i s d i c t i o n and period of analysis. Analyses which follow tend to support the l a t t e r proposition. D i s t r i b u t i o n of the Grievors by Occupation The occupation of a l l but twenty-three of the grievors was contained in the awards sampled (see table 3). Notably absent were grievors from white c o l l a r occupations. Over 80 percent of the grievors were, in fact, from the ranks of blue c o l l a r occupations. Three of the blue c o l l a r occupational c a t e g o r i e s — s e r v i c e employees, truck drivers, and processing occupations—accounted for almost one-half of the sample. Of the grievors whose occupation i t was to provide a service, 10 held positions TABLE 3 26 Dis t r i b u t i o n of the Grievors by Occupation OCCUPATION ABSOLUTE FREQUENCY RELATIVE FREQUENCY (PERCENT) Managerial, Administrative 4 1.9 Social Sciences 2 1.0 Teaching 2 1.0 Medicine and Health 4 1.9 Art and Recreation 2 1.0 C l e r i c a l 15 7.2 Sales 6 2.9 Service 26 12.4 Logging 11 5.3 Mining 2 1.0 Processing 39 18.7 Machining 2 1.0 Product Fabricating • 19 9.1 Construction Trades 14 6.7 Truck Drivers 31 14.8 Materials Handling 10 4.8 Equipment Operators 12 5.7 General Labour 8 3.8 Total 209 100.0 Note: A detailed description of the occupational categories used appears in Appendix 2. related to food and beverage preparation, 4 provided protective services, 3 supplied services associated with lodging f a c i l i t e s , and 9 employees provided an assortment of miscellaneous services. One of the most homogeneous of the nineteen occupational 27 categories was that of truck dr i v i n g . Although the grievors in this category were employed in a variety of industries, their duties and the equipment they operated were in most cases "very si m i l a r . As a group the grievors in thi s occupational category were the most numerically s i g n i f i c a n t . Processing occupations were held by 39 of the grievors and, not su r p r i s i n g l y , 27 of these were related to the manufacture of wood products. Food and beverage processing occupations accounted for ten additional discharge cases. Looking next at the d i s t r i b u t i o n of occupations on the basis of sex, i t was found that women were represented in only ten of the nineteen occupational categories. The t r a d i t i o n a l relationships between occupation and sex were evident. C l e r i c a l positions were held by 18.8 percent of the women but by only 5.1 percent of the men. One-quarter of the women in the sample were the holders of service occupations. Just 10.2 percent of the male grievors were in that occupational group. The processing occupations were represented by 16.9 and 28.1 percent respectively of the male and female grievors. D i s t r i b u t i o n of the Grievors by Seniority The figures in table 4 demonstrate that employees of r e l a t i v e l y few years s e n i o r i t y appeared more apt to be dismissed than employees in possession of longer service records. 2 Nearly one-half of the grievors, whose seniority was known, had a 2The p o s s i b i l i t y exists that the figures presented in table 4 simply r e f l e c t the c h a r a c t e r i s t i c s of the work force. No data exists to substantiate whether that i s indeed the case. 28 service record no more than two years in length. About 80 percent of the sample had no more than fiv e years s e n i o r i t y . A mere 8.7 percent of the grievors had more than ten years of sen i o r i t y . TABLE 4 Dis t r i b u t i o n of the Grievors by Seniority SENIORITY ABSOLUTE FREQUENCY RELATIVE FREQUENCY (PERCENT) LE 6 months 28 17.5 GT 6 mo. & LE 1 yr • 25 15.6 GT 1 yr. & LE 1.5 yrs. 14 8.7 GT 1.5 yrs. & LE 2 yrs. 11 6.9 GT 2 yrs. & LE 2.5 yrs. 11 • 6.9 GT 2.5 yrs. & LE 3 yrs. 10 6.3 GT 3 yrs. & LE 3.5 yrs. 5 3.1 GT 3.5 yrs. & LE 4 yrs. 12 7.5 GT 4 yrs. & LE 4.5 yrs. 6 3.7 GT 4.5 yrs. & LE 5 yrs. 5 3.1 GT 5 yrs. & LE 7.5 yrs. 12 7.5 GT 7.5 yrs. & LE 10 yrs. 7 4.3 GT 10 yrs. & LE 12 .5 yrs. 4 2.5 GT 12.5 yrs . & LE 15 yrs. 5 3.1 GT 15 yrs. & LE 20 yrs. 5 3.1 Total 160 100.0 The results are in no way surprising. Employees of many years' s e n i o r i t y have.much to lose should they be dismissed. Surely they are aware of t h i s , and.as a re s u l t , more l i k e l y to 29 conform to the rules of the workplace. The data may also r e f l e c t management's appreciation of the considerable investments that are often made in employees over a.long period of time—investments which may have produced employees whose s k i l l s are d i f f i c u l t to replace. The data may also indicate that management is aware of the fact that a r b i t r a t o r s are as a general rule more sensitive to the interests of long service employees than they are to employees of r e l a t i v e l y few years s e n i o r i t y . D i s c i p l i n a r y Record of the Grievors The d i s c i p l i n a r y record of the grievors i s presented in table 5. Interestingly enough, the results suggest that the majority of the grievors had not proven to be d i s c i p l i n a r y problems prior to discharge. The figures show that in 47.0 percent of the cases, a r b i t r a t o r s f a i l e d in their written decisions to make e x p l i c i t reference to the grievor's prior d i s c i p l i n a r y record. Failure to mention the grievor's work record cannot, given the frequency of occurrence and the importance of this factor, be attributed to oversights on the part of a r b i t r a t o r s . The inescapable conclusion is that when ar b i t r a t o r s f a i l e d to discuss the work record of grievors i t was because those records were not serious enough to warrant e x p l i c i t attention. If t h i s interpretation i s correct, serious doubts are cast over management's e f f i c i e n c y in the administration of d i s c i p l i n e . While i t is u n r e a l i s t i c to expect an employer to document every i n f r a c t i o n committed by an employee, the fact 30 TABLE 5 Di s c i p l i n a r y Record of the Grievors DISCIPLINARY RECORD ABSOLUTE FREQUENCY RELATIVE FREQUENCY (PERCENT) Unrelated Verbal 9 4.1 Unrelated Written 9 4.1 Unrelated Suspension . 13 5.9 Related Verbal 8 3.7 Related Written 23 10.5 Related Suspension 15 6.8 Previous D i s c i p l i n a r y Record not Discussed 103 47.0 Clean Record 39 17.8 Total 219 100.0 remains that close to 20 percent of the grievors had clean d i s c i p l i n a r y records. Less than 15 percent of the grievors had been subject to d i s c i p l i n e for reasons unrelated to the f i n a l cause for dismissal. Only 21 percent had received previous warnings concerning offenses, which when repeated, resulted in dismissal. D i s t r i b u t i o n of the Grievors by Union A f f i l i a t i o n The 232 grievors belonged to forty-three unions in t o t a l . Those unions which represented a t o t a l of five or more grievors are l i s t e d in table 6. As those figures show, close to 70 31 percent of the grievors held membership in one of nine unions. Four unions, the International Woodworkers of America, the Teamsters, the United Steelworkers of America, and the Canadian Union of Public Employees, represented 53.8 percent of the grievors. Twenty-two unions represented, at most, two grievors. TABLE 6 Distri b u t i o n of the Grievors by Union A f f i l i a t i o n UNION ABSOLUTE FREQUENCY RELATIVE FREQUENCY (PERCENT) % OF B.C. UNION MEMBERS I.W.A. 51 22.0 12.8 Teamsters 40 17.2 5.6 Steelworkers 20 8.6 3.3 C.U.P.E. 14 6.0 6.1 B.C.G.E.U. 9 3.9 9.3 Hotel-Restaurant • 9 3.9 3.1 Brewery Workers 7 3.0 0.4 Reta i l Clerks 6 2.6 2.1 I.U.O.E. 6 2.6 3.2 H.E.U. 5 2.2 4.4 C.A.I.M.A.W. 5 2.2 1.0 Total 172 74.2 51.3 The figures indicate that some unions accounted for a disproportionately large share of the grievant sample. The I.W.A. with less than 13 percent of the union members in the province, was the union to which 22 percent of the grievors 32 belonged. The Teamsters and Steelworkers with 5.6 and 3.3 percent of the union members in the province accounted for 17.2 and 8.6 percent respectively of a l l arbitrated dismissals. 3 It is noteworthy as well, that the second largest union in the province, the B.C.G.E.U., with 9.3 percent of province's union members, accounted for only 3.9 percent of the dismissals taken to a r b i t r a t i o n . Union O f f i c e r s Arbitrators i d e n t i f i e d 23 grievors as ones holding o f f i c i a l union positions. Overall, there was l i t t l e evidence to suggest that employee involvement in union a f f a i r s was a motivating factor in the employer's decision to dismiss the worker. Rather, i t seemed in many cases that these grievors either became over zealous in carrying out their union duties, or were under the impression that as union o f f i c i a l s they were e n t i t l e d to more l i b e r t i e s than the rest of the work force. Cause for Dismissal Over twenty s p e c i f i c causes for.dismissal were i d e n t i f i e d in the awards examined. Employee offenses were then placed into one of nine categories. With a sample size of 232 grievors a nine part c l a s s i f i c a t i o n scheme did run the risk of producing 3The number of union members in the province was estimated from figures contained in the B.C. Labour Directory. A l l union membership figures contained in t h i s thesis were revised to exclude most union members not under the j u r i s d i c t i o n of the B.C. Labour Code. 33 numerically i n s i g n i f i c a n t categories. The alt e r n a t i v e , of course, was to develop fewer categories of a more a l l encompassing nature. The problem with that approach was that given the d i v e r s i f i e d nature of employee misconduct, i t became d i f f i c u l t to define categories both wide in scope and whose constituent elements exhibited some common uniting theme. Therefore, the following c l a s s i f i c a t i o n scheme was adopted: (i) Work Performance. Cases included here related to how the work was done. Incompetence, negligence, and f a i l u r e to meet performance standards were the major causes for dismissal within th i s category. The incompetent employee was one whose work was simply beyond his/her c a p a b i l i t i e s , either because of lack of a b i l i t y or as a result of some motivational problem. Negligence was the cause when an employee of proven c a p a b i l i t i e s suffered from occasional lapses of attention or application which were detrimental to productivity or the safety of other employees. ( i i ) Breach of company rules. Examples included smoking in unauthorized areas, drinking alcoholic beverages during lunch hour, etc. ( i i i ) Damage to company property. These cases were distinguished from those above in that they were isolated instances in the employee's work histo r y . Whether the damage was intentional or unintentional was not always clear and no attempt to make that d i s t i n c t i o n was made. (iv) Attendance. Included here were intermittent absences of one or two days, to absences of many consecutive days. Also included in t h i s category were cases of tardiness. (v) U n r e l i a b i l i t y . Under t h i s heading f e l l offenses such as sleeping on the job, loafi n g , and extended work breaks. (vi) Dishonesty. Theft, f a l s i f i c a t i o n of production or time sheets, and other dishonest acts were included under th i s heading. ( v i i ) Insubordination. Refusals to accept orders, abusive language, physical altercations with management, public c r i t i c i s m s of employers, and other acts of insubordination were included under t h i s heading. ( v i i i ) F a i l u r e to get along. Complaints from fellow workers or from customers of the employer were included in t h i s category. The source of the problem ranged from uncooperativeness to out-and-out f i g h t i n g . Included as well were cases of horseplay. 34 (ix) Other. Included alcohol related dismissals, off-the-job ' misconduct, immoral acts, and cases where no pa r t i c u l a r offense was alleged. TABLE 7 Cause for Dismissal CAUSE FOR DISMISSAL ABSOLUTE FREQUENCY RELATIVE FREQUENCY (PERCENT) Performance 46 19.8 Breach of rules 18 7.8 Damage 18 7.8 Attendance 36 15.5 U n r e l i a b i l i t y 15 6.5 Dishonesty 15 6.5 Insubordination 50 21.6 Failure to get along 13 5.6 Other 21 9.1 Total 232 100.0 Table 7 presents the s t a t i s t i c a l picture of alleged causes for dismissal. Acts of insubordination quite expectedly accounted for the largest portion of dismissals with refusals to accept orders accounting for 24 of the 50 insubordinate acts. Insubordinate conduct s t r i k e s at the very heart of the employment relationship. Misconduct of t h i s type l i k e l y provokes an emotional response in many managers, a response quickly leading to dismissal. The prominent position of insubordinate acts can be p a r t i a l l y explained from an employee's perspective as well. Again, the key i s the degree of emotion in which insubordinate conduct i s usually shrouded. Unlike many 35 TABLE 8 Occupation by Cause for Dismissal Count Row Pet. OCCUPATION 1 2 3 4 5 6 7 8 9 Row Total Managerial Admin,Prof 5 38.5 1 7.7 0 0.0 1 7.7 1 7.7 1 7.7 2 15.4 1 7.7 1 7.7 13 6.4 C l e r i c a l & Sales 9 42.9 1 4.8 0 0.0 1 4.8 1 4.8 4 19.1 2 9.6 1 4.8 2 9.6 21 10.4 Service 6 24.0 7 28.0 1 4.0 1 4.0 0 0.0 3 12.0 2 8.0 2 8.0 3 12.0 25 12.4 Primary 0 0.0 2 15.4 0 0.0 2 15.4 4 30.8 0 0.0 5 38.5 0 0.0 0 0.0 13 6.4 Processing 4 10.8 2 5.4 3 8.1 5 13.5 3 8.1 1 2.7 12 32.4 5 13.5 2 5.4 37 18.3 Machine Fabrication 5 23.8 0 0.0 4 19.1 4 19.1 2 9.6 1 4.8 3 14.3 1 4.8 1 4.8 21 10.4 Construct-ion 2 15.4 1 7.7 0 0.0 2 15.4 2 15.4 1 7.7 5 38.5 0 0.0 0 0.0 13 6.4 Truck Driving 7 23.3 3 10.0 8 26.7 2 6.7 0 0.0 0 0.0 8 26.7 1 3.4 1 3.4 30 14.9 Materials Handling 3 10.3 2 6.9 1 3.4 5 17.2 3 10.3 1 3.4 9 31.0 2 6.9 2 6.9 29 14.4 Column 42 18 17 23 15 14 48 13 12 202 Total 20.8 8.9 8.4 11.4 7.4 6.9 23.8 6.4 5.9 100.0 Note: l=Work Performance, 2=Breach of rules, 3=Damage, 4=Attendance, 5=Unreliablity, 6=Dishonesty, 7=Insubordination, 8=Incompatible, 9=Other forms of misconduct, insubordinate acts are not as a rule premeditated. The employee who would never consider p a r t i c i p a t i n g in any other type of misbehaviour might quite unexpectedly find himself embroiled in a shouting match or other emotionally fed outburst. An examination of the relat i o n s h i p between cause for 36 dismissal and the grievor's occupation lends some support to the hypothesis that the form in which employee misconduct manifests i t s e l f , is a function of an individual's occupation. Table 8 shows that white c o l l a r workers tended to be f i r e d for reasons related to how their work was done. Among blue c o l l a r employees the cause of dismissal seemed most l i k e l y to be for reasons of insubordination. This was e s p e c i a l l y true for the primary, processing, and materials handling occupations. The Employers Contained in the sample of awards were 163 employers (tot a l organizations) who conducted their businesses at 181 geograpically dispersed locations. Nearly one-half of the business s i t e s were located in the Greater Vancouver Regional D i s t r i c t . The remaining s i t e s were about evenly d i s t r i b u t e d throughout the province. Of the 163 organizations, 134 were parties to only one award. Ninety-eight grievances could be traced to twenty-nine • employers. The two largest employers in the sample, the Provincial Government and MacMillan Bloedel, generated a t o t a l of nineteen dismissals. What follows i s a discussion of the i n d u s t r i a l i d e n t i f i c a t i o n of the employers' operations and a description of the labour force size of the organizations involved. Industrial C l a s s i f i c a t i o n of the Employers The i n d u s t r i a l c l a s s i f i c a t i o n of the grievors and the 37 employers for whom they worked is presented in table 9. The figures contained there provided i n i t i a l support for the hypothesis that: An uneven d i s t r i b u t i o n of dismissals e x i s t s amongst industries. The mining industry, for example, produced 9.1 percent of the grievors and yet less than 3 percent of the unionized labour force was, during the period of analysis, employed by the mining industry. On the other hand, the service sector generated 25.2 percent of the grievors, but employed close to 35 percent of the unionized labour force. Before commencing a more rigorous test of the above hypothesis, a word of warning is in order. The analysis w i l l proceed under the assumption that, across industries, a constant proportion of a l l discharge grievances are taken to a r b i t r a t i o n . Because the t o t a l number of dismissals represents a figure of unknown magnitude, the accuracy of that assumption cannot be tested. However, after reading of the circumstances surrounding the dismissal of over 200 employees, I believe the assumption to be a reasonable one. It simply implies that a l l unions evaluate the merits of any given discharge in a comparable manner. There are, of course, some good examples when the above assumption i s not l i k e l y to be s a t i s f i e d . Mining communities are t y p i c a l l y one employer towns. Workers dismissed by that employer w i l l , i f they desire similar employment, be faced with relocation. Construction workers, on the other hand, change jobs often, either on their own i n i t i a t i v e , or because construction projects are at times short-term and moves must be made to the next construction s i t e . To construction workers a 38 TABLE 9 Industrial C l a s s i f i c a t i o n of Employers and Grievors EMPLOYERS GRIEVORS RELATIVE RELATIVE ABSOLUTE FREQUENCY ABSOLUTE FREQUENCY INDUSTRY FREQUENCY (PERCENT) FREQUENCY (PERCENT) Primary 23 12.8 39 16.9 logging 12 6.7 18 7.8 mining 11 6.1 21 9.1 Construction 9 5.0 13 5.7 Manufacturing 61 34.0 78 33.9 food and bev. 12 6.7 14 6.1 wood 31 17.3 37 16.1 p r i n t i n g 3 1.7 4 1.7 metals 2 1.1 8 3.5 machining 4 2.2 6 2.6 mi sc. 9 5.0 9 3:9 Transportat ion, Comm., & U t i l . 16 9.0 21 9.1 transportation 13 7.3 17 7.4 comm., & u t i l . 3 1.7 4 1.7 Trade 19 10.6 21 9.1 Service 51 28.6 58 25.2 educat ion 6 3.4 6 2.6 health 5 2.8 6 2.6 other 22 12.3 27 11.7 municipal 10 5.6 10 4.3 provinc i a l 8 4.5 9 3.9 Total 179 100.0 230 100.0 dismissal may accelerate by only a few days the necessity to relocate. It i s unlikely that the unions to which the miner and construction worker belonged would assess the merits of their member's grievance in comparable fashion given the varying degree of impact the dismissal would impose on each worker. Examples such as these are believed, however, to be in the minority. 39 To test the hypothesis the observed number of discharge a r b i t r a t i o n s for each industry was compared (where data were available) to the number of discharge a r b i t r a t i o n s that the industry in question would have been expected to produce. Total union membership in an industry formed the basis for c a l c u l a t i n g the number of expected discharge a r b i t r a t i o n s . 4 The data in table 10 supports the hypothesis. There do appear to be discharge prone industries. The observed variations in discharge a r b i t r a t i o n s could not be attributed to a chance occurrence (Chi-square=81.51, df=5, p<.001). Column three of table 10 contains the r a t i o of observed to expected discharge a r b i t r a t i o n s . The figures there indicate how many times the observed discharge a r b i t r a t i o n s exceeded the number expected. The mining industry , for example, experienced 3.8 times more discharge a r b i t r a t i o n s than what union membership figures for that industry would have suggested. F i n a l l y , the figures in column three were used to rank industries according to their discharge proneness. Four d i s t i n c t i v e categories were i d e n t i f i e d . The industries of mining and trade were by a large margin the most discharge prone of the industries. Workers in the construction industry appeared to be the least prone to dismissal. The remaining industries f e l l close together, between the two above extremes. The key to explaining the pattern that emerged was thought 4For instance, 34.9 percent of the unionized labour force was employed in the service sector. Therefore, of the 212 discharge a r b i t r a t i o n s accounted for in table 10, 34.9 percent of these ( i . e . 74.0 discharge arbitrations) would have been expected to arise in the service sector. 40 TABLE 10 Discharge Ar b i t r a t i o n Propensities by Industry OBSERVED EXPECTED RATIO: DISCHARGE DISCHARGE OBSERVED-INDUSTRY ARBITRATIONS ARBITRATIONS EXPECTED RANKING Mining 21 5.5 3.8 HIGH Trade 21 8.1 2.6 Manufacturing 78 66.6 1.2 food and bev 14 11.4 1.2 wood 37 33.3 1.1 MEDIUM metals 8 8.5 0.9 machine 6 5.9 1.0 misc. 9 7.4 1.2 Tran,Comm,Util. 21 26.3 0.8 trans. 17 19.9 0.9 comm., ut i 1 . 5 6.4 0.6 MEDIUM-LOW Service 58 74.0 0.8 education 6 7.2 0.8 munic i p a l 10 11.0 0.9 misc. 14 55.8 0.3 Construct ion 13 31.4 0.4 LOW to be found in examining the occupational make-up of the industries involved. Just as some occupational groups seemed more inclined than others to be dismissed for s p e c i f i c types of misconduct, so too i t was thought that certain occupations were l i k e l y to be discharge prone. Industries comprised largely of these occupational categories would then be the most discharge prone. Some evidence has already been provided which suggests that a disproportionate number of dismissals came from the ranks of certain occupations. Truck drivers were were quite c l e a r l y such a group. Truck drivers accounted for close to 15 percent of the 41 grievor sample (see table 3). This would appear to be a greater percentage of the sample than what union membership figures for this group would suggest. The non-existence of union membership figures by occupation prevented the ranking of occupations according to their discharge proneness. The existence of such a ranking schedule could, however, be explained in theoreti c a l terms. There were thought to be three features of occupational groups, which could explain the uneven d i s t r i b u t i o n of dismissals across industries; differences in the behavioural, c h a r a c t e r i s t i c s of employees across occupations, employer perceptions of the organizational value of employees in di f f e r e n t occupations, and the tr a n s f e r a b i l t y of an employee's s k i l l s . Each of these w i l l be discussed in turn. Behavioural Characteristics of the Work Force In their study on st r i k e propensities, Kerr and Siegel revealed that an uneven d i s t r i b u t i o n of strikes existed among in d u s t r i e s . 5 The authors r e l i e d heavily on two aspects of the " i n d u s t r i a l environment" to explain the variation in s t r i k e propensities; these were the location of the worker in society and the character of the job and the worker. Referring to the l a t t e r issue, the authors had t h i s to say: ...the inherent nature of the job determines, by selection and conditioning, the kinds of workers 'Clark Kerr and Abraham Siegel, "The Interindustry Propensity to S t r i k e — A n International Comparison," in Industrial C o n f l i c t , ed. A. Kornhauser R. Dubin, and A. Ross (New York: McGraw-Hill, 1954) pp. 189-204. 42 employed and their attitudes, and these workers, in turn, cause c o n f l i c t or peace. If the job is physically d i f f i c u l t and unpleasant, unskilled or semiskilled, and casual or seasonal, and fosters an independent s p i r i t (as in the logger in the woods), i t . w i l l draw tough, inconstant, combative, and v i r i l e workers, and they w i l l be i n c l i n e d to s t r i k e . If the job i s physically easy and performed in pleasant surroundings, s k i l l e d and responsible, steady, and subject to set rules and close supervision, i t w i l l a ttract women or the more submissive type of man who w i l l abhor s t r i k e s . Certainly the b u l l of the woods and the mousy bank clerk are d i f f e r e n t types of people and can be expected to act d i f f e r e n t l y . ' The inferences Kerr and Siegel made concerning the behavioural c h a r a c t e r i s t i c s of occupational groups and s t r i k e a c t i v i t y appear equally supportive of the suggested d i s p r o p o r t i o n a l i t i e s in dismissal rates amongst occupations and industries. Employee behaviour cannot be assumed to be constant across occupational l i n e s . Some occupations w i l l appeal to individuals who by their very nature w i l l be more l i k e l y than others to behave in a manner unacceptable to management and outside the boundaries of acceptable behaviour as outlined in a r b i t r a t i o n awards. Employer Attitudes There appears to be some supporting evidence for the b e l i e f that an employee's value to an organization or a department thereof, influences d i s c i p l i n a r y decisions. William Boise 7 analyzed the attitudes of supervisors towards the administration of d i s c i p l i n e and found that a worker's value to his/her 'Ibid. p. 195. 'William B. Boise, "Supervisors'Attitudes Toward D i s c i p l i n a r y Actions," Personnel Administration, 28 (1965), 24-27. department i n f l u e n c e d the s u p e r v i s o r ' s choice of p e n a l t y . More s p e c i f i c a l l y , s u p e r v i s o r s were shown to be r e l u c t a n t to impose p e n a l t y on an employee whose s k i l l s were in short supply. Those f i n d i n g s have r e c e i v e d a d d i t i o n a l support. In an experimental study of f a c t o r s i n f l u e n c i n g d i s c i p l i n a r y judgement, a d m i n i s t r a t o r s were d i s c o v e r e d to e x h i b i t greater l e n i e n c y toward r u l e i n f r a c t i o n s committed by high s t a t u s and e x c e p t i o n a l l y t a l e n t e d employees. 8 J a n i t o r s were d i s c i p l i n e d more s e v e r e l y than managerial personnel f o r i d e n t i c a l r u l e v i o l a t i o n s . In a d d i t i o n , employees with high job s t a t u s or c r e a t i v e t a l e n t s were p e r c e i v e d as s i g n i f i c a n t l y l e s s r e s p o n s i b l e f o r r u l e i n f r a c t i o n s . T r a n s f e r a b i l i t y of S k i l l s The t r a n s f e r a b i l t y of a worker's s k i l l s may l e s s e n the impact u s u a l l y a s s o c i a t e d with d i s m i s s a l . To employees whose s k i l l s are e a s i l y t r a n s f e r a b l e , e i t h e r because hi g h demand f o r these s k i l l s e x i s t s elsewhere, or because t h e i r s k i l l s are so g e n e r a l i n nature that job o p p o r t u n i t i e s e x i s t with many employers i n a v a r i e t y of i n d u s t r i e s , the consequences of d i s m i s s a l w i l l be l e s s severe. A l l things being equal, there w i l l be l e s s i n c e n t i v e f o r these employees to conform to the r u l e s of the workplace. The l i k e l i h o o d of d i s m i s s a l may t h e r e f o r e be c o r r e s p o n d i n g l y i n c r e a s e d . "Benson Rosen and Thomas H. Jerdee, " F a c t o r s I n f l u e n c i n g D i s c i p l i n a r y Judgments," J o u r n a l of A p p l i e d Psychology, 59 (1974), 327-331. 44 Explanatory Power Of the three arguments proposed, Kerr and Siegel's appears to provide the most insight into why s p e c i f i c occupational groups and industries are discharge prone. It i s , after a l l , the individual's behaviour which triggers the chain of events leading to dismissal. The fact that an employee i s aware that his or her s k i l l s are in short supply cannot in and of i t s e l f be expected to induce unacceptable behaviour. It may, however, make continued non-conformity a more risk free adventure. An employee's evaluation of the t r a n s f e r a b i l i t y of his/her s k i l l s and the extent to which t h i s may influence behaviour must then be considered to be of secondary importance. So too must employer perceptions of an employee's value to the organization. This i s a factor which receives attention only a f t e r employee misconduct has manifested i t s e l f . Kerr and Siegel's hypothesis seems to adequately explain the position of the mining and service industries. It i s noteworthy as well that the manufacturing industry in this study, as well as that of Kerr and Siegel's, centered the d i s t r i b u t i o n of discharge/strike prone industries. The low ranking of the construction industry has been attributed to the unique employer-employee rela t i o n s h i p found to exist in that industry. The fact that a good many of the employees in the transportation, .communication, and u t i l i t i e s industries come under the j u r i s d i c t i o n of the Canada Labour Code, and thus outside the scope of this project, may have distorted (in an unknown direction) the discharge ranking of that i n d u s t r i a l category. Trade remained one i n d u s t r i a l category whose v i s i b l y high discharge ranking came as somewhat 45 of a surprise. It appears that the transferabiIty of the s k i l l s possessed by those employed in this industry best explains the disproportionately high number of discharges that arose. About two-thirds of the grievors who were employed in this industry held c l e r i c a l , sales, or general labour type positions. -These are occupations whose marketability is increased because of the vast number of potential employers. Number of Employees in the Dismissing Organization Data on the number of employees in the dismissing organizations were available for 113 of the 163 employers (see table 11). The sample was dominated by employers of r e l a t i v e l y few employees. Close to one-quarter of the organizations employed a work force of less than f i f t y workers. Nearly 60 percent of the organizations employed no more than 500 employees.' The d i s t r i b u t i o n of grievors was heavily weighted among very small and very large organizations. About 30 percent of the dismissals originated in organizations of fewer than 200 employees. A similar percentage of dismissals arose in organizations of 2000 or more employees. The numerical significance of small organizations in th i s sample should not be taken l i g h t l y . These employers are not l i k e l y to possess a great deal of i n d u s t r i a l relations 'This is not to suggest that a disproportionate number of dismissals arose in firms of r e l a t i v e l y few employees. Lack of data prevents that hypothesis from being tested. In any event, the number of employers contained in that category i s thought to be an important observation in and of i t s e l f . 46 TABLE 11 Dis t r i b u t i o n of Employers and Grievors by Total Organizational Employment EMPLOYERS GRIEVORS TOTAL ORGANIZATIONAL EMPLOYMENT ABSOLUTE FREQUENCY RELATIVE FREQUENCY (PERCENT) ABSOLUTE FREQUENCY RELATIVE FREQUENCY (PERCENT) 0-50 27 23.9 27 15.4 51-100 11 9.7 14 8.0 101-200 13 11.5 13 7.4 201-300 16 14.2 20 11.4 301-500 8 7.1 14 8.0 501-750 2 1.8 9 5.1 751-1000 1 1.0 1 0.6 1001-1500 11 9.7 18 10.3 1501-2000 4 3.5 5 2.9 2001-5000 6 5.3 11 6.3 5001-10000 6 5.3 10 5.7 10000+ 8 7.1 33 18.9 Total 113 100.0 175 100.0 expertise. Unless they have been involved in a r b i t r a t i o n s at some previous time, they may very well be unaware of their l e g a l r e s p o n s i b i l i t i e s in the area of employee d i s c i p l i n e , and of the c r i t e r i a a r b i t r a t o r s use in evaluating contested grievances. While these employers are most l i k e l y to rely on professionals to insure e f f i c i e n c y in areas of production, financing, and r e t a i l i n g , the aid of similar expertise in the f i e l d of labour relations i s not apt to be sought u n t i l a c r i s i s has a r i s e n — 4 7 after a dismissal has occurred and been taken to a r b i t r a t i o n by the union. The Arbitrators A t o t a l of f i f t y - e i g h t a r b i t r a t o r s acted as chairmen in the awards sampled. 1 0 The ten most frequently demanded ar b i t r a t o r s were involved in the settlement of 68 percent of the grievances. One-third of the disputes were chaired by just three a r b i t r a t o r s . One arbitrator alone served as the chairman in 17.6 percent of the awards. At the other extreme, 60 percent of the a r b i t r a t o r s participated in just one a r b i t r a t i o n hearing each. The parties to the disputes showed no clear preference with regard to the composition of a r b i t r a t i o n boards. Single member boards presided over 52.8 percent of the a r b i t r a t i o n proceedings, with multi-member boards preferred by 47.2 percent of the pa r t i e s . F i n a l l y , in 46 of the 102 t r i p a r t i t e boards, at least one dissenting view was expressed. Elapsed Time Analysis The purpose of thi s exercise was to determine the impact that multi-member, as opposed to single member boards of ar b i t r a t i o n had on the time required to se t t l e grievances. Total elapsed time, the time which elapsed between the date of 1 0See Appendix 3 for a l i s t of the a r b i t r a t o r s . 48 discharge and the date of the a r b i t r a t o r ' s decision, was separated into i t s two constituent elements: the time between the date of discharge and the date of the a r b i t r a t i o n hearing, and the time taken following the hearings for the board to issue a decision. The three time periods were then calculated for both single and multi-member boards of a r b i t r a t i o n . The results of the analysis are contained in table 12. The figures show that the numerical composition of an .arbitration board influenced in no uncertain manner t o t a l elapsed time and i t s two component parts. The elapsed time between an a r b i t r a t i o n hearing and a board's decision i s one which c l e a r l y comes under the control of an a r b i t r a t i o n board. As expected, t r i p a r t i t e boards required a s i g n i f i c a n t l y longer period of time to issue a decision than did sole a r b i t r a t o r s (t=2.234, p<.001). Sole a r b i t r a t o r s required an average of 15.9 days following a hearing to provide a decision. Multi-member boards took nearly one week longer on average to issue an award. The elapsed time between the date of dismissal and the date of the a r b i t r a t i o n hearing i s determined more by the mechanics of the parties' grievance procedure. Nevertheless, the time that elapsed here was an average of ten days longer when the board's composition was of the multi-member variety. One can only conclude that t h i s difference i s a direct consequence of the time required to appoint partisan advocates and of the d i f f i c u l t i e s in scheduling a hearing for not one, but three or more board members. In terms of t o t a l elapsed time then, a s i g n i f i c a n t difference existed between the e f f i c i e n c y of sole a r b i t r a t o r s 49 TABLE 12 Elapsed Time Patterns in Discharge Arbitrations by Board Composition GRIEVANCE HEARING TOTAL BOARD TO TO ELAPSED COMPOSITION HEARING AWARD TIME Sole X=103.3 X=15.9 1=131.2 Arbi trator S=69.8 S=15.1 S=80.2 n = 96 n = 96 n = 110 T r i p a r t i t e 2=113.5 X=22.2 5=147.1 Board s=64.7 s=20.6 s=88.3 n = 78 n=78 n = 95 and panels of arb i t r a t o r s (t=2.31, p<.05). Total elapsed time was on average sixteen days longer when a panel of arb i t r a t o r s was used by the parties. The results described above compare favourably with findings in other j u r i s d i c t i o n s . A recent Ontario study found, for instance, that sole a r b i t r a t o r s in that province took an average of 23 days from the date of the hearing to the date of the award, six days longer than sole a r b i t r a t o r s in B r i t i s h Columbia. 1 1 Furthermore, t r i p a r t i t e boards in Ontario took 23 days longer to issue awards than did sole a r b i t r a t o r s in that province and about 24 days longer than multi-member boards in B r i t i s h Columbia. F i n a l l y , a comparison of elapsed time patterns in B r i t i s h Columbia to those in the United States reveals a . s t r i k i n g 1 1"Study Finds Single Arbitrator Is Faster and Cheaper," CCH Indus t r i a l and Personnel Developments, No. 47, November 20, 1974. 50 contrast in the e f f i c i e n c y of the two systems. In a study covering the years 1971-1972, researchers in the United States found that the average elapsed time from date of grievance to date of award was 255 days. 1 2 The comparable figure for B r i t i s h Columbia was 139 days. The parties to the dispute required an average of 219 days to move a grievance to the hearing stage in the United States. The parties in B r i t i s h Columbia required 108 days on average. Arbitrators in B r i t i s h Columbia took an average of 19 days following the hearings to provide an award. Their United States counterparts needed more than four times that length of time, 81 days on average. Summary The purpose of this chapter was to put into s t a t i s t i c a l perspective the c h a r a c t e r i s t i c s of the parties involved in the discharge a r b i t r a t i o n process. Although some questions were answered in the course of that analysis (e.g. the elapsed time differences between sole a r b i t r a t o r s and t r i p a r t i t e boards of a r b i t r a t i o n ) , the strength of the analysis i s not believed to l i e in i t s a b i l i t y to answer questions. Rather, the importance of the analysis is that i t confirms what were previously unsubstatiated suspicions (e.g. that the grievors did in fact have few years seniority, or that the vast majority came from the ranks of blue c o l l a r occupations). Thus, the major contribution of the chapter is that i t provides a foundation 1 2Pearce Davis and Gopal C. Pa t i , "Elapsed Time Patterns in Labor Grievance A r b i t r a t i o n : 1942-1972," The A r b i t r a t i o n Journal, 29, (1974), 15-27. 51 upon which questions can now be asked and more rigorous analyses pursued. 52 CHAPTER V AN ANALYSIS OF THE ARBITRAL DISPOSITION OF DISCHARGE ARBITRATIONS IN BRITISH COLUMBIA This chapter w i l l examine the decisions of a r b i t r a t o r s in B r i t i s h Columbia in terms of their outcomes: that i s , whether a discharge was upheld, or whether reinstatement with f u l l , p a r t i a l , or no back pay was awarded by the a r b i t r a t o r . 1 For the purposes of comparison, the chapter begins with a review of results obtained in other studies conducted in North America. The results of this study w i l l then be presented and an attempt w i l l be made to explain the pattern of outcomes found to exist in B r i t i s h Columbia. Comparative Analysis Fred Holly, in the f i r s t major analysis of discharge a r b i t r a t i o n s , reviewed 1055 awards of American a r b i t r a t o r s covering the years 1942-1956.2 The results of his study were presented for two time periods: 1942-1947 and 1951-1956. During the f i r s t period management's decision to discharge was upheld Awards which could not be placed into one of these four categories were excluded from the analysis. There were ten such exclusions. 2 J . Fred Holly, "Considerations in Discharge Cases," Monthly Labor Review, 80 (1957), 684-688. 53 in 39.5 percent of the cases and modified or reversed 61.5 percent of the time. The period 1951-1956 saw management's actions sustained in 45.4 percent of the awards and revoked or reduced in 54.6 percent of the cases. Holly offered several reasons for what he saw as an improvement in management's record with time. An increasing f a m i l i a r i t y with the a r b i t r a t i o n process formed the basis of his arguments. The use of a r b i t r a t i o n as the f i n a l step in grievance procedures was not widely used prior to World War I I . As the acceptance of grievance a r b i t r a t i o n grew, the parties to disputes gained a better understanding of the c r i t e r i a used by a r b i t r a t o r s , which in turn led to better managerial administration of d i s c i p l i n e . In addition, i t was believed that a r b i t r a t o r s were gaining experience and becoming more consistent in considering certain accepted p r i n c i p l e s with respect to each of the various types of discharge cases. John Teele replicated Holly's study using a sample of 295 American awards that spanned the years 1956-1960.3 The analysis f a i l e d to disclose any s i g n i f i c a n t d i s s i m i l a r i t i e s in outcomes from those Holly found for the period 1951-1956. Teele found that management was sustained in 44 percent of the dismissals. The discharge penalty was reduced 32 percent of the time and reinstatement with f u l l back pay was ordered in 24 percent of the cases. Teele speculated that the "improvement" spoken of by Holly might not climb beyond some l i m i t . He suggested that the 44 percent success rate- of management may have represented the 3John W. Teele, "The Thought Process of the A r b i t r a t o r , " The A r b i t r a t i o n Journal, 17 (1965), 85-95. 54 area of s t a b i l i z a t i o n . Dallas Jones analyzed 665 a r b i t r a t i o n awards involving discharge a r b i t r a t i o n s for the years 1963-1967 and his findings appeared to lend support to Teele's hypothesis. 4 The study reported that: 46.2 percent of the dismissals were upheld, 15.6 percent of the awards ordered reinstatement with f u l l back pay, 12.3 percent of the grievors were reinstated with p a r t i a l back pay, and reinstatement with no back pay was awarded in 25.9 percent of the cases. From these results Jones concluded that management was more careful in screening those dismissals which went to a r b i t r a t i o n . Not only were 46 percent of the cases decided f u l l y in managements's favour, but in addition, 25.9 percent resulted in reinstatement with no back pay. The l a t t e r group of cases, stated Jones, could be considered borderline management v i c t o r i e s . In a more recent American study, Ken Jennings and Roger Wolter reported that 42.3 percent of 400 discharge a r b i t r a t i o n awards issued between 1971 and 1974 upheld management's d i s c i p l i n a r y action. Dismissals were revoked in 23 percent of the awards and reduced in 34.7 percent of the cases. 5 The authors noted that when these findings were compared to those of Holly there appeared to be a reversal in the "improvement" trend. One explanation provided for t h i s turn of events was 4Dallas L. Jones, "Ramifications of Back-Pay Awards in Suspension and Discharge Cases," in A r b i t r a t i o n and Social Change. Proceedings of the Twenty-Second Annual Meeting, National Academy of Ar b i t r a t o r s , Gerald G. Somers, ed. (Washington: BNA Books, 1969), pp. 163-175. 5Ken Jennings and Roger Wolter, "Discharge Cases Reconsidered," The A r b i t r a t i o n Journal, 31 (1976), 164-180. 55 that unions had with time become more sophisticated in screening those grievances allowed to proceed to a r b i t r a t i o n . Unions, i t was suggested, may have learned not to ..press those grievances generally disapproved by a r b i t r a t o r s . The f i r s t Canadian study similar in design to those discussed above, drew on a sample of 645 d i s c i p l i n a r y discharges f i l e d with the Ontario Labour-Management Commission between July 1970 and December 1974.' The same pattern of outcomes that had emerged in the American studies was once again evident. Management's discharge actions were upheld in 46 percent of the cases. The discharge penalty was revoked in 17 percent of the awards, and a lesser penalty was substituted in 35 percent of the discharge a r b i t r a t i o n s . Reflecting for a moment on the studies thus far discussed one has to be impressed with the uniformity of results (see table 13). Represented here are fiv e major studies. A period of over t h i r t y years has been evenly canvassed. The results, however, appear to be independent of the researcher and of time. Within any given outcome category the range in results obtained varies by only a few percentage points.'' When one examines the decisions of a r b i t r a t o r s in B r i t i s h Columbia during the period 1974-1977, however, a pattern of 'George W. Adams, "Concepts of Industrial D i s c i p l i n e and Their Results," paper presented at the Industrial Relations Centre, Queen's University, Kingston, Ontario,12 May 1978. 7Not a l l of the authors presented their findings in the form presented in table 13. In a few studies separate figures were given for each of the two types of reduced penalties ( i . e . for reinstatement with p a r t i a l and no back pay). For ease in comparability, only three outcome categories were used in table 13. 56 TABLE 13 Comparative Results of Discharge Ar b i t r a t i o n Outcomes PERCENTAGE OF CASES IN WHICH: HOLLY (n=1055) 1942- 1951-1951 1956 TEELE (n=295) 1956-1960 . JONES (n=665) 1963-1967 JENNINGS & WOLTER (n=400) 1971-1974 ADAMS (n=645) 1970-1974 MANAGEMENT SUSTAINED 39.4 45.4 44.0 46.2 42.3 46.5 PENALTY REVOKED 26.2 22.2 24.0 15.6 23.0 17.8 PENALTY REDUCED 34.4 32.4 32.0 38.2 34.7 . 35.7 TABLE 14 A r b i t r a l Disposition of Discharge Grievances:British Columbia 1974-1977 ARBITRATORS' AWARDS ABSOLUTE FREQUENCY RELATIVE FREQUENCY (PERCENT) MANAGEMENT 70 31.5 SUSTAINED PENALTY 47 21.2 REVOKED PENALTY 105 47.3 REDUCED Total 222 100.0 outcomes very d i f f e r e n t than discharge penalty was upheld a r b i t r a t i o n s . Reinstatement those discussed above unfolds, in only 31.5 percent of the with no back pay was awarded in The 57 24.3 percent of the cases while reinstatement with p a r t i a l back pay was ordered in 23.0 percent of the discharge a r b i t r a t i o n s . These results are noticeably at odds with figures obtained in other j u r i s d i c t i o n s . On the whole, ar b i t r a t o r s in B r i t i s h Columbia were about 30 percent less l i k e l y to uphold the discharge penalty, while a reduced penalty was 35 percent more l i k e l y to be awarded. Why did such a d i f f e r e n t pattern of outcomes emerge in B r i t i s h Columbia? From a purely methodological perspective, differences in sampling techniques used in this study may account for some of the discrepancy. This study used a sample of discharge awards which very nearly approached the population of a l l discharge awards issued during the period of analysis. The sample of discharge a r b i t r a t i o n s used in the American studies were, by comparison, drawn only from those awards which were published. Thus, the sample of awards used in those studies may not have been as representative of a l l discharge grievances submitted to a r b i t r a t i o n as was the case in t h i s study. Jones suggested, however, that there i s reason to believe that i f a l l discharge awards were published, the percentage of discharges upheld would be greater, not l e s s . 8 He suggested that many of the cases in which the discharge penalty is upheld are not published because they present no unusual issues or circumstances. In the case of the Ontario study, i t appears that a l l discharge a r b i t r a t i o n s which occurred during the period of analysis were included in the sample. Therefore, "Jones, p.165. 58 sampling techniques alone cannot explain the markedly d i f f e r e n t set of outcomes observed in B r i t i s h Columbia. Research methods aside, several hypothesis can be developed to explain the B r i t i s h Columbia r e s u l t s . Perhaps unions in this province are more discriminating than unions elsewhere in screening those grievances taken to a r b i t r a t i o n . It is generally accepted that unions use the a r b i t r a t i o n process for p o l i t i c a l or strategic reasons—to maintain rank and f i l e morale, to allow the a r b i t r a t o r (and not the union) to make a negative decision, to support the position of a steward, as a reaction to intra-union f a c t i o n a l r i v a l r i e s , etc.' Perhaps unions in B r i t i s h Columbia place less reliance on these kinds of p o l i t i c a l considerations and place more emphasis on the merits of each grievance compared to unions involved in the other studies. Differences in managerial techniques might also account for the observed difference in a r b i t r a l outcomes. The low percentage of upheld discharges in B r i t i s h Columbia may indicate that employers in this province are less discriminating than employers in other j u r i s d i c t i o n s in deciding those grievances that should be allowed to proceed to a r b i t r a t i o n . Testing these hypotheses is beyond the scope of this study. It would be worthwhile to determine the extent to which union and management screening methods d i f f e r e d in B r i t i s h Columbia as opposed to Ontario. It would be extemely interesting to evaluate the impact that any observed differences had. on the 'See Donald J. Petersen, "Why Unions Go to A r b i t r a t i o n , " Personnel, 48, No.4 (1971), 44-49. 59 o v e r a l l record of management. Investigations of the decision making process of employers, in f i r i n g employees, and of unions, in taking grievances to a r b i t r a t i o n , might very well offer some insights into explaining the d i f f e r e n t pattern of outcomes which emerged in B r i t i s h Columbia. This thesis w i l l not attempt to explain why the a r b i t r a l d i s p o s i t i o n of discharge grievances d i f f e r e d so d r a s t i c a l l y between B r i t i s h Columbia and other j u r i s d i c t i o n s . The sources of that variation must, for the types of reasons discussed above, remain a subject of speculation. What w i l l be undertaken is a i n t r a - B r i t i s h Columbia analysis of the sources of variation in a r b i t r a t o r s ' decisions. In chapter four many of the c h a r a c t e r i s t i c s of the grievors, employers, and a r b i t r a t o r s were discussed. An attempt w i l l now be made to determine whether any relationships exist between the c h a r a c t e r i s t i c s of the parties contained in the sample, and the o v e r a l l decisions of a r b i t r a t o r s . Analysis of the A r b i t r a l Disposition of Discharge Grievances in B r i t i s h Columbia Before commencing, i t i s thought important to examine the decisions of a r b i t r a t o r s on a yearly basis. The period under investigation i s only four years in length. One year in which r e l a t i v e l y few dismissals were upheld may have been enough.to d i s t o r t the o v e r a l l r e s u l t s . The figures in table 15 suggest that t h i s was not the case. While i t was to management's cred i t that the percentage of discharges revoked f e l l quite sharply over the four year period, during the same period the percentage of dismissals upheld each 60 TABLE 15 The A r b i t r a l Disposition of Discharge Grievances in B r i t i s h Columbia by Year Count Row Pet REINSTATEMENT WITH: Col Pet DISCHARGE NO PARTIAL FULL Row YEAR UPHELD BACK PAY BACK PAY BACK PAY Total 1974 13 . 5 8 11 37 35.1 13.5 21.6 29.7 16.7 18.6 9.3 15.7 23.4 1975 21 10 14 18 63 33.3 15.9 22.2 28.6 28.4 30.0 18.5 27.5 38.3 1976 22 18 16 7 63 34.9 28.6 25.4 14.9 28.4 31.4 33.3 31.4° 14.9 1977. 14 21 13 11 59 23.7 35.6 22.0 18.6 26.6 20.0 38.9 25.5 23.4 Column 70 54 51 47 222 Total 31.5 24.3 23.0 21.2 100.0 year f e l l in a similar fashion. Furthermore, discharges sustained never exceeded 36 percent. F i n a l l y , i t i s noteworthy that the above observations imply that over the four year period of analysis a r b i t r a t o r s substituted their judgement for that of management's in an increasingly greater percentage of the cases. Outcome by Employment Status There were too few probationary employees in the sample to have an impact on the ove r a l l set of outcomes. However, given the d i f f e r e n t l e g i s l a t i v e conditions governing the dismissal of probationers as opposed to ordinary employees, an examination of 61 a r b i t r a t o r s ' decisons with respect to these two classes of employees seemed appropriate. As reported in table 16, probationary employees in B r i t i s h Columbia had their dismissals upheld more than twice as often as TABLE 16 Outcome by Employee Status Count Row Pet REINTSTATEMENT WITH: EMPLOYEE DISCHARGE NO PARTIAL FULL Row STATUS UPHELD BACK PAY BACK PAY BACK PAY Total REGULAR 63 54 49 45 211 29.9 25.6 23.2 21.3 95.1 PROBATIONARY 7 0 2 2 11 63.6 0.0 18.2 18.2 4.9 Column 70 54 51 47 222 Total 31.5 24.3 23.0 21.2 100.0 was the case for seniority rated employees. This stems from the fact that in three instances discharged probationary employees were covered by c o l l e c t i v e agreements which l e f t to the disc r e t i o n of the employer the unfettered right to dismiss employees during their probationary period. In four additional t cases involving probationers the a r b i t r a t o r s ruled that the standard to use was "just cause" but to a lesser degree than that applied to regular employees. 62 Outcome by Seniority Had the sample of grievors contained a large proportion of long service employees the low percentage of upheld dismissals would have been easier to explain. Long service employees have the most at stake in discharge cases and a r b i t r a t o r s could be expected to be more sensitive to the interests of these employees. But over 70 percent of the grievors had no more than four years of service. This s t a t i s t i c would be better suited to explaining a high percentage of upheld dismissals. It provided no insight into explaining the observed outcomes in B r i t i s h Columbia. Table 17 examines the d i s t r i b u t i o n of a r b i t r a t o r s ' decisions in re l a t i o n to employee s e n i o r i t y . The figures suggest that the seniority of a grievor had l i t t l e impact on the TABLE 17 Outcome by Seniority Count Row Pet REINSTATEMENT WITH: DISCHARGE NO PARTIAL FULL Row SENIORITY UPHELD BACK PAY BACK PAY BACK PAY Total Less than 16 16 17 13 62 2 yrs 25.8 25.8 27.4 21.0 43.7 GT 2 yrs- 8 13 9 8 38 LT 4 yrs 21.1 34.2 23.7 21.1 26.8 More than 13 9 12 8 42 4 yrs 31.0 21.4 28.6 19.0 29.6 Column 37 38 38 29 142 Total 26.1 26.8 26.8 20.4 100.0 a r b i t r a l decision making process. There was l i t t l e v ariation in outcomes between those employees with more than four years of 63 s e n i o r i t y and those employees with less than four year of service. Furthermore, the variation which exists i s in a d i r e c t i o n opposite to what might have been predicted. A greater percentage of discharges were upheld among the high seniority group of grievors. There are of course a myriad of factors which could have distorted the relationship between grievor s e n i o r i t y and grievance d i s p o s i t i o n . It i s noteworthy in t h i s regard, however, that a r b i t r a t o r s seldom made e x p l i c i t reference to a grievor's seniority in their written decisions. Outcome by D i s c i p l i n a r y Record Table 18 presents the d i s t r i b u t i o n of outcomes on the basis of the grievors' prior d i s c i p l i n a r y records. Because there was some question concerning the interpretation of awards which contained no e x p l i c i t reference to a grievor's work record, that category was omitted in t h i s analysis. In addition, the analysis was r e s t r i c t e d to employees who had completed their probationary period. There can be no uncertainty in interpreting the results presented in table 18. A strong r e l a t i o n s h i p c l e a r l y exists between the grievors' work records and the decisions of a r b i t r a t o r s (Chi-square=26.19, df=6, p<.001, Gamma=-0.52). The source of t h i s r elationship i s most evident in columns one and four of table 18. The l i k e l i h o o d of a dismissal being upheld for a grievor who had received a d i s c i p l i n a r y penalty for an offense related to the one which produced the dismissal was six times greater than that of a grievor with a clean work record, and more than twice as l i k e l y as the grievor who had been 64 TABLE 18 Outcome by D i s c i p l i n a r y Record Count Row Pet REINSTATEMENT WITH : DISCIPLINARY DISCHARGE NO PARTIAL FULL Row RECORD UPHELD BACK PAY BACK PAY BACK PAY Total Clean 3 9 13 12 37 8.1 24.3 35.1 32.4 33.3 Unrelated 7 9 12 3. 31 22.6 29.0 38.7 9.7 27.9 Related 22 11 5 5 43 51.2 25.6 11.6 11.6 38.7 Column 32 29 30 20 111 Total 28.8 26.1 27.0 18.0 100.0 d i s c i p l i n e d for misconduct d i s s i m i l a r to that which resulted in his/her dismissal. Grievors with unblemished work records were also three times more l i k e l y to be reinstated with f u l l back pay. That the above relationship existed i s not surprising. There would have been r e a l cause for alarm had i t not materialized. What is surprising i s that as noted in chapter four so few of the grievors had been subject to some form of d i s c i p l i n e prior to their dismissal. To dismiss an employee without f i r s t attempting to apply less severe forms of d i s c i p l i n e i s d i r e c t l y at odds with the pr i n c i p l e s of corrective d i s c i p l i n e . This offers one explanation for the low percentage of upheld dismissals. A r b i t r a t o r s have obviously taken note of the fact that many employers f a i l e d to adhere to the p r i n c i p l e s of corrective d i s c i p l i n e . 65 Outcome by Cause for dismissal There was considerable v a r i a t i o n in the decisions of a r b i t r a t o r s in r e l a t i o n to the causes for dismissal (see table 19). No real insight into explaining management's record emerged however. In fact, the figures in table 19 do not even provide insights into how a r b i t r a t o r s view s p e c i f i c types of employee misconduct. That the percentage of dismissals upheld for a given type of misconduct was quite low does not necessarily imply that a r b i t r a t o r s consider that offense to be of a less serious nature. It may simply mean that employers f a i l e d to provide convincing evidence in support of the actions they took. There are, nevertheless, a few statements that can be made with some certainty. Overall, 31.6 percent of the dismissals were upheld. Therefore, employees accused of incompetence, damage to company property, absenteeism, dishonesty, and incompatibility tended to have their dismissals overturned more often than grievors dismissed for other forms of alleged misconduct. Those workers charged with insubordination, u n r e l i a b i l i t y , or a breach of company rules were less l i k e l y to see their dismissal overturned than was the sample as a whole. The charges of incompetence and dishonesty are generally regarded as ones, which to be substantiated, require a high degree of proof. Although the percentage of dismissals sustained in cases of incompetence was not appreciably d i f f e r e n t from that of the sample as a whole, i t should be noted that over 40 percent of these grievors were returned to work with f u l l 66 TABLE 19 Outcome by Cause for Dismissal Count Row Pet Col Pet REINSTATEMENT WITH: CAUSE FOR DISCHARGE NO PARTIAL FULL Row DISMISSAL UPHELD BACK PAY BACK PAY BACK PAY Total Work 13 7 5 17 42 Performance 31.0 16.7 11.9 40.5 19.5 19.1 13.2 9.8 39.5 9 4 5 0 18 Breach of rules 50.0 22.2 27.8 0.0 8.4 13.2 7.5 9.8 0.0 3 6 3 5 17 Damage 17.6 35.3 17.6 • 29.4 7.9 4.4 11.3 5.9 11.6 10 11 3 9 33 Attendance 30.3 33.3 9.1 27.3 15.3 14.7 20.8 5.9 20.9 5 4 3 2 14 U n r e l i a b i l i t y 35.7 28.6 21.4 14.3 6.5 7.4 7.5 5.9 4.7 Dishonesty" 4 4 -5 1 14 36.0 28.6 35.7 7.1 6.5 5.9 7.5 9.8 2.3 18 10 18 4 50 Insubordination 36.0 20.0 36.0 8.0 23.3 26.5 18.9 35.3 9.3 3 . 3 4 3 13 Incompat ible 23.1 23.1 30.8 23.1 6.0 4.4 5.7 7.8 7.0 3 4 5 2 14 Other 21.4 28.6 35.7 14.3 6.5 4.4 7.5 9.8 4.7 Column 68 53 51 43 215 Total 31.6 24.7 23.7 20.0 100.0 back pay. It appears that many employers f a i l e d to appreciate the amount and quality of evidence they would have to provide an ar b i t r a t o r before a dismissal for incompetence would be upheld. In many discharge cases the employee's g u i l t i s not in question. 67 There is no dispute between the parties over whether the grievor was absent for many days of work, or whether a supervisor was struck. The real issue i s whether the d i s c i p l i n a r y action taken by the employer was reasonable. In dismissals concerning work performance the central question more often than not concerns the g u i l t of the grievor, and i t is here that employers ran into problems. While employers had l i t t l e d i f f i c u l t y in l i s t i n g the shortcomings of employees, they were unable in many cases to prove that these shortcomings were any d i f f e r e n t or more serious than those of the rest of the employer's work force, that the source of the problem was not beyond the employee's control, or that the grievor could not respond to a lesser form of disc i p l i n e . Employees dismissed for damaging company property were reinstated in over 80 percent of the cases. There appeared to be two reasons why employers encountered d i f f i c u l t y in j u s t i f y i n g the dismissal of these employees. Quite often these were isolated events in the employee's work history. In other cases a r b i t r a t o r s concluded that the employer was i n d i r e c t l y responsible for the damage through a f a i l u r e to adequately t r a i n the grievor or provide needed supervision. Prior studies indicated no trend with respect to a r b i t r a t o r s ' decisions concerning acts of insubordination. The below average rate of reinstatement in t h i s study may very well be explained by the high degree of aggressive behaviour which accompanied many of the cases of insubordination. 68 Outcome by Occupation Table 20 presents the a r b i t r a l d isposition of discharge grievances on the basis of the grievor's occupation. The figures offer no clues in explaining the ove r a l l record of employers. Only three occupational groups, representing just 35 TABLE 20 Outcome by Occupation Count Row Pet REINSTATEMENT WITH: DISCHARGE NO PARTIAL FULL Row OCCUPATION UPHELD BACK PAY BACK PAY BACK PAY Total Manager i a l , 4 1 6 3 14 Admin, Prof. 28.6 7.1 42.9 21.4 7.0 C l e r i c a l & 4 5 4 6 19 Sales 21.1 26.3 21.1 31.6 9.5 Service 13 4 8 1 13 50.0 15.4 30.8 3.9 13.0 Logging & 6 3 2 2 13 Mining . 46.2 23.1 15.4 15.4 6.5 Processing & 11 19 14 12 56 Related 19.6 33.9 25.0 21.4 28.0 Construct ion 5 7 2 0 14 Trades 35.7 50.0 14.3 0.0 7.0 Truck 9 6 6 8 29 Dr ivers 31.0 20.7 20.7 27.6 14.5 Mater i a l 12 5 6 6 29 Handling & 41.4 17.2 20.7 20.7 14.5 Related Column 64 50 48 38 200 Total 32.0 25.0 24.0 19.0 100.0 percent of the sample, had reinstatement rates of less than 60 percent. Thus, there was no evidence to suggest that one or two occupational categories were the source of the low overall 69 percentage of dismissals upheld. Outcome by Arbitrator It was noted that close to 70 percent of the discharge a r b i t r a t i o n s were heard by just ten a r b i t r a t o r s . Approximately f i f t y a r b i t r a t o r s s e t t l e d the remaining grievances. Because sharp differences in a r b i t r a t i o n experience existed between TABLE 21 Outcome by A r b i t r a l Experience Count Row Pet REINSTATEMENT WITH: Col Pet DISCHARGE NO PARTIAL FULL Row ARBITRATORS UPHELD BACK PAY BACK PAY BACK PAY Total Group 1 48 38 33 32 151 31.8 25.2 21.9 21.2 68.0 68.6 70.4 64.7 68.1 Group 2 22 16 18 15 71 31.0 22.5 25.4 21.1 32.0 31.4 29.6 35.3 31.9 Column 70 54 51 47 222 Total 31.5 24.3 23.0 21.2 100.0 these two groups, the p o s s i b i l i t y existed that the awards produced by each group may have been substantially d i f f e r e n t . Table 21 shows that the a r b i t r a l d i s p o s i t i o n of discharge grievances was independent of the a r b i t r a t i o n group responsible, for s e t t l i n g the dispute (t=-0.26 df=220 p=.799). The decisions of the ten most c a l l e d upon a r b i t r a t o r s (group 1) and those of less experienced a r b i t r a t o r s (group 2) d i f f e r e d by less than 5 percent for any given outcome category. 1 0 1 0The reader i s referred to Appendix 3 for the names of the ar b i t r a t o r s belonging to each group. 70 Outcome by Board Composition The figures presented in. table 22 show that the addition of an employer and union nominee to a board of a r b i t r a t i o n had no bearing on the decision rendered by the board (t=-0.49 df=220 p=.625). The decisions of t r i p a r t i t e boards of a r b i t r a t i o n and TABLE 22 Outcome by Board Compostion Count Row Pet REINSTATEMENT WITH: BOARD DISCHARGE NO PARTIAL FULL Row COMPOSITION UPHELD BACK PAY BACK PAY BACK PAY Total T r i p a r t i t e 34 27 21 22 104 Board 32.7 26.0 20.2 21.1 46.9 Sole 36 27 30 25 118 Arbitrator 30.5 22.2 25.4 21.2 .53.1 Column 70 54 51 47 222 Total 31.5 24.3 23.0 21.2 100.0 those of sole a r b i t r a t o r s were very nearly i d e n t i c a l . The ef f i c i e n c y of t r i p a r t i t e boards has already been questioned. Multi-member boards used a s i g n i f i c a n t l y longer period of time to produce their decisions than did sole a r b i t r a t o r s . It appears, therefore, that the parties to the disputes were prepared to accept the additional delays and costs associated with t r i p a r t i t e boards in favour of perceived p o l i t i c a l , benefits. 71 Outcome by Industry Table 23 presents the outcomes of discharge a r b i t r a t i o n s among the industries responsible for their occurrence. The most noteworthy aspect of thi s data is the consistency of results TABLE 2 3 Outcome by Industry Count Row Pet Col Pet REINSTATEMENT WITH: DISCHARGE NO PARTIAL FULL Row INDUSTRY UPHELD BACK PAY BACK PAY BACK PAY Total Primary 14 12 3 9 38 Industries 36.8 31.6 7.9 23.7 17.3 20.3 22.2 5.9 19.6 Construct ion 4 0 2 6 12 33.3 0.0 16.7 50.0 5.5 5.8 0.0 3.9 13.0 Manufacturing 20 20 20 14 74 27.0 27.0 27.0 18.9 33.6 29.0 37.0 39.2 30.4 Transportation 6 7 5 3 21 Comm,Util 28.6 33.3 23.8 14.3 9.5 8.7 13.0 0 9.8 6.5 Trade 6 5 3 5 19 31.6 26.3 15.8 26.3 8.6 8.7 9.3 5.9 10.9 Service 19 10 18 9 56 33.9 17.9 32.1 16.1 25.5 27.5 18.5 35.3 19.6 Column 69 54 51 46 220 Total 31.4 24.5 23.2 20.9 100.0 across industries. Employers engaged in primary industries were the most successful in j u s t i f y i n g their d i s c i p l i n a r y actions, . although only 36.8 percent of the dismissals in those industries were upheld. The lowest percentage of discharges upheld 72 occurred within the manufacturing sector in which twenty-seven percent of the grievors from that i n d u s t r i a l category were not reinstated. Thus, in terms of success in having dismissals upheld, less than a 10 percent margin separated the industries at either extreme. In chapter four the existence of discharge prone industries was examined. It was suggested at that time that there were circumstances unique to the mining and logging industries which might prompt unions in those industries, more than others, to take dismissals to a r b i t r a t i o n . The figures in table 23 do not provide strong support for that hypothesis. Too few dismissals were upheld in the primary industries to seriously suggest that factors other than the merits of the grievance were the driving force behind the "decision to proceed to a r b i t r a t i o n . Outcome by Total Organizational Employment The analysis of the a r b i t r a l d isposition of discharge grievances has to this point proceeded with very few t h e o r e t i c a l considerations in mind. Characteristics of the grievors, the a r b i t r a t o r s , and the employers were used as independent variables in attempting to i s o l a t e the sources of management's poor record. That analysis generated few clues which might help explain the d i s t r i b u t i o n of outcomes of discharge a r b i t r a t i o n s in B r i t i s h Columbia. Furthermore, even had that exercise been more successful there could have been l i t t l e s a t i s f a c t i o n in the results obtained. Lacking a t h e o r i t i c a l base the results obtained could simply be attributed to the unique c h a r a c t e r i s t i c s of the sample being analyzed. An attempt w i l l now be made to explain the d i s t r i b u t i o n of outcomes observed within a t h e o r i t i c a l framework, the results of which may have more universal a p p l i c a b i l i t y . It was hypothesized that: The larger the organization, the more l i k e l y i t is that management's decision to dismiss an employee w i l l be upheld by a board of a r b i t r a t i o n . Support for this hypothesis rests on two assumptions concerning the administration of i n d u s t r i a l d i s c i p l i n e as practiced by organizations of varying levels of employment. Because the imposition of d i s c i p l i n e i s a less l i k e l y event in the day to day administration of an organization of few employees i t was assumed that proficiency in the application of corrective d i s c i p l i n e was least l i k e l y among employers in t h i s category. Consequently, these employers could be expected to encounter the most d i f f i c u l t y in convincing boards of a r b i t r a t i o n that the grievor's downfalls and needs for improvement had, through a system of progressive d i s c i p l i n e , been brought to the attention of that employee. Structural d i s s i m i l a r i t i e s between small and large organizations formed the basis for the second assumption. The larger an employer's labour force the more l i k e l y i t i s to find a separate i n d u s t r i a l relations or personnel department, within which rests f i n a l authority to dismiss an employee. D i s c i p l i n a r y decisions made on the shop floor can be independently reviewed and c r i t i c a l l y analyzed in these departments. Such a screening process should reduce the l i k e l i h o o d of dismissals provoked by emotional responses, not supported by the evidence, guided by a misinterpretation of the c o l l e c t i v e agreement, and so on. 74 To test the hypothesis the sample of employers was f i r s t p a r t itioned into three a r b i t r a r i l y chosen size categories: small (less than 500 employees), medium (501-5000 employees), and large (more than 5000 employees). Then, for each category of employer, the decisions of a r b i t r a t o r s were calculated.. The results of this exercise are presented in table 24. A relat i o n s h i p did in fact exist between organizational size and the l i k e l i h o o d that a discharge penalty was sustained, modified, or revoked (Chi-square=173.08, df=4, p<.001). TABLE 24 Outcome by Total Organizational Employment ORGANIZATIONAL DISCHARGE PENALTY PENALTY Row EMPLOYMENT UPHELD REDUCED REVOKED Total Less than 500 31 46 30 107 29.0 43.0 28.0 54.9 47.0 53.5 69.8 501-5000 14 22 5 41 34.1 53.7 12.2 21.0 21.2 25.6 11.6 5000 + 21 18 8 47 44.7 38.3 17.0 24.1 31.8 20.9 18.6 Column 66 86 43 195 Total 33.8 44.1 22.1 100.0 The source of the relationship i s to be found in columns one and three of table 24. The percentage of dismissals upheld by a r b i t r a t o r s grew with each incremental increase in organizational size. Employers of more than 5000 employees were 50 percent more successful than employers of less than 500 employees in convincing a r b i t r a t o r s of the necessity to impose as strong a d i s c i p l i n a r y action as discharge. At the same time, 75 the percentage of discharge penalties revoked by a r b i t r a t o r s was, by a substantial margin, highest for employers of fewer than 500 employees. Indeed, nearly 70 percent of the reinstatement with f u l l back pay awards were directed toward employers in the small employment category. The relationship between organizational size and the a r b i t r a l d isposition of discharge grievances i s further highlighted by examining the record of some of the larger unions before a r b i t r a t i o n boards. Overall, 29.2 percent of the dismissals taken to a r b i t r a t i o n by the I.W.A. were upheld. Those dismissals can, however, be separated into two roughly equal groups: those which originated in organizations of less than 500 employees, and those which arose in organizations of more than 500 employees. Comparing the arbitrated settlements of the two groups one finds that in the former group 19.2 percent of the dismissals were upheld while in the l a t t e r group 40.9 percent of the discharges were sustained. A similar divergence in arbitrated settlements existed between the Teamsters' and Steelworkers' unions. Of the dismissals taken to a r b i t r a t i o n by the Teamsters, 26 percent were upheld while in 35 percent of the cases the grievors were reinstated with f u l l back pay. Of the dismissals taken to a r b i t r a t i o n by the Steelworkers, 45 percent were upheld and in only 18 percent of the cases were the grievors reinstated with f u l l back pay. The observed d i s s i m i l a r i t i e s in outcomes seems best explained by differences in the sizes of labour forces organized by both unions in t h i s sample. Workers organized by the Teamsters were employed primarily by organizations with small labour forces. 76 In fact, close to 40 percent of these grievors worked for employers who employed fewer than 50 individuals. Grievors holding membership with the Steelworkers were, by comparison, employed in the vast majority of cases by employers with labour forces in excess of 500 employees. The underlying assumption used to explain the above results was that expertise in the administration of i n d u s t r i a l d i s c i p l i n e varies d i r e c t l y with the size of an organization's labour force. The reasonableness of that assumption can be tested from the data at hand. Details of the grievors' prior d i s c i p l i n a r y records were studied in r e l a t i o n to the size of the organization responsible for imposing the d i s c i p l i n a r y action. The results of that analysis appear in table 25. A systematic relationship was found to exist between organizational size and the grievors' work records (Chi-square=33.53, df=4, p<.001). Associated with each upward movement in organizational employment was an increase in the percentage of grievors who had previously been d i s c i p l i n e d for an offense similar to the one that led to dismissal, and a decrease in the percentage of grievors who had not prior to discharge been subject to any d i s c i p l i n a r y action. So pronounced were these upward and downward trends that grievors dismissed by employers of more than 5,000 employees were twice as l i k e l y to have been previously d i s c i p l i n e d for offenses similar to the one leading to dismissal than to have never been a d i s c i p l i n a r y problem. On the other hand, a grievor f i r e d by an employer of fewer than 500 employees was more l i k e l y to have had a clean d i s c i p l i n a r y record than to have been previously d i s c i p l i n e d for a similar 77 TABLE 2 5 Organizational Employment by D i s c i p l i n a r y Record of the Grievor Sample ORGANIZATIONAL EMPLOYMENT BY PRIOR PRI OR DISCIPLINARY CLEAN UNRELATED RELATED Row RECORD RECORD MISCONDUCT MISCONDUCT Total Less than 500 19 13 15 47 employees 40.4 27.7 31.9 50.5 61.3 50.0 41.7 501-5000 6 6 9 21 employees 28.6 28.6 42.9 22.6 19.4 23.1 25.0 5000+ 6 7 12 25 employees 24.0 28.0 48.0 26.9 19.4 26.9 33.3 Column 31 26 36 93 Total 33.3 28.0 38.7 100.0 offense. Furthermore, there is no evidence to suggest that those grievors with clean d i s c i p l i n a r y records and who had been employed by an employer in the small employment category had committed an offense so serious as to make a lesser form of d i s c i p l i n e inappropriate. Eight of the nineteen grievors were reinstated with f u l l back-pay. Only two of those dismissals were upheld. Summary Evidence was introduced in thi s chapter which suggested that the l i k e l i h o o d of a dismissal being upheld by an ar b i t r a t o r in B r i t i s h Columbia was s i g n i f i c a n t l y lower than what has been the case in other j u r i s d i c t i o n s . Although most of the e a r l i e r studies of the a r b i t r a l d i s p o s i t i o n of discharge grievances have 78 suffered from defects in sampling techniques, there was reason to believe that an even greater discrepancy would have been found to exist had those studies adopted the same sampling procedures as were employed in t h i s thesis. Furthermore, because the results of the e a r l i e r studies were so a l i k e , and because nothing was said to the contrary, i t appeared that those authors were s a t i s f i e d that management's record in discharge ar b i t r a t i o n s was at an acceptable l e v e l . The objective of this chapter was to i s o l a t e those c h a r a c t e r i s t i c s of the parties which appeared to explain why so few dismissals were upheld by a r b i t r a t o r s in B r i t i s h Columbia. An examination of the data suggested that i t is unwise to make blanket statements about the record of managers. A relationship was found to exist between the size of an organization, measured in terms of employment, and the l i k e l i h o o d of a discharge penalty being upheld, reduced, or revoked by an a r b i t r a t o r . The analysis revealed that the a r b i t r a l experience of large and small employers d i f f e r e d s i g n i f i c a n t l y . Employers of r e l a t i v e l y few employees were about 50 percent more l i k e l y to see a r b i t r a t o r s revoke a dismissal and about 50 percent less l i k e l y to see their d i s c i p l i n a r y actions upheld, than were employers in the largest labour force category. Failure to properly administer a program of corrective d i s c i p l i n e appeared to be the underlying cause for the d i f f i c u l t y these employers experienced before boards of a r b i t r a t i o n . Thus, the low o v e r a l l percentage of upheld dismissals in B r i t i s h Columbia seemed best explained by the poor record of the numerically strong employers in the 0-500 labour force category. 80 CHAPTER VI SUMMARY AND CONCLUSIONS The objective of thi s thesis was to provide a comprehensive analysis of discharge a r b i t r a t i o n awards f i l e d in B r i t i s h Columbia. It i s noteworthy in thi s regard that the sample of awards choosen closely approximated the population of a l l discharge a r b i t r a t i o n s which occurred in B r i t i s h Columbia during the years 1974-1977. This represented a s i g n i f i c a n t improvement over the sampling techniques adopted in previous studies. The analysis was divided in two. F i r s t , a descriptive analysis of the grievors, employers, and ar b i t r a t o r s contained in the a r b i t r a t i o n awards was provided. The results obtained are believed to have cleared the way for more rigorous research in the area of i n d u s t r i a l d i s c i p l i n e . The questions asked in the introduction were investigated, and the following conclusions made: 1. As hypothesized, a disproportionately large number of the grievors were males. Perhaps the best explanation for that occurrence i s to be found in the Kerr and Siegel hypothesis referred to e a r l i e r in this thesis. The occupations those authors described as appealing to individuals unlikely to exhibit unacceptable behaviour are the ones in which women are t y p i c a l l y found. 2. As predicted, a large proportion of the sample came from the ranks of blue c o l l a r occupations. In fact, over 80 percent of the grievors held blue c o l l a r positions. Three occupational groups—service employees, truck drivers, and processing occupations—accounted for almost one-half of the sample of grievors. 81 3. The analysis revealed that about 80 percent of the sample had less than five years of s e n i o r i t y . Almost 50 percent of the grievors had yet to accumulate two years of s e n i o r i t y . A mere 8.7 percent of the grievors had more than 10 years s e n i o r i t y . These results were a l l consistent with what had been hypothesized. 4. An examination of the d i s c i p l i n a r y records of the grievors indicated that, generally speaking, their work records were not exceptionally poor. In fact, close to 20 percent of the grievors had clean work records. These observations were in direct contrast to what had been expected. 5. The grievors were found to have belonged to a t o t a l of 43 unions. Of those unions, nine alone represented 70 percent of the grievors. 6. Only 23 (9.9 percent) of the grievors held o f f i c a l union positions. L i t t l e evidence surfaced which would indicate that these employees were dismissed because of underlying anti-union sentiments held by their employers. 7. The three most prominent causes for dismissal were for insubordination (21.6 percent), for reasons related to work performance (19.8 percent), and for problems related to attendance (15.5 percent). 8. There was some evidence to suggest the existence of a relationship between occupation and cause for dismissal. White c o l l a r workers tended to be dismissed for reasons related to how their work was done. Blue c o l l a r workers were f i r e d more often for acts of insubordination. 9. Support was found for the hypothesis that an uneven d i s t r i b u t i o n of dismissals exists amongst industries. It was found, for example, that the mining industry experienced 3.8 times more discharge a r b i t r a t i o n s than what union membership figures for that industry predicted. The service sector, on the other hand, had only 80 percent of the number of predicted discharge a r b i t r a t i o n s . The Kerr and Siegel hypothesis concerning the nature of jobs and the behavioural c h a r a c t e r i s t i c s of those individuals who are drawn to those jobs seemed best to explain the pattern that emerged. 10. The sample of awards was dominated by employers of r e l a t i v e l y small labour forces. Nearly 60 percent of the employers employed a work force of less than 500 employees. Close to one-quarter of the employers employed less than 50 individuals. 11. Sole a r b i t r a t o r s handed down decisions approximately one week e a r l i e r than t r i p a r t i t e boards of a r b i t r a t i o n (15.9 days compared to 22.2 days on average). Total elapsed time was 16 days longer (147 days compared to 131 days on average) when t r i p a r t i t e boards were used. Whether these s t a t i s t i c s are of p a r t i c u l a r significance is open to one's personal outlook. To a 82 researcher these differences in elapsed time may seem i n s i g n i f i c a n t . To a grievor the additional delays associated with t r i p a r t i t e boards may be a matter of extreme concern. In chapter five the second objective of the thesis was undertaken. An attempt was made to explain the s t a t i s t i c a l outcomes of awards by searching for relationships between the c h a r a c t e r i s t i c s of the parties contained in the awards (and described in chapter four), and the decisions of a r b i t r a t o r s . In examining those relationships l i s t e d in the introductory chapter the following conclusions were arrived at: 1. The dismissals of probationary employees were upheld by boards of a r b i t r a t i o n more than twice as often as was the case for regular employees. 2. The suspected inverse relationship between seniority and the l i k e l i h o o d of a dismissal being upheld f a i l e d to materialize. L i t t l e v a r i a t i o n existed between the pattern of outcomes observed and the s e n i o r i t y of the grievors. 3. A strong relationship was found to exist between the grievors' work records and the decisions of a r b i t r a t o r s . The l i k e l i h o o d of a dismissal being upheld for a grievor who had received some d i s c i p l i n a r y penalty for an offense related to the one which produced the dismissal was six times greater than that of a grievor with a clean work record, and more than twice as l i k e l y as the grievors who had been d i s c i p l i n e d for misconduct unrelated to the cause for dismissal. Grievors with clean work records were also three times more l i k e l y to be reinstated with f u l l back than were employees with blemished work records. 4. No real insights were gained by exploring the relationship between cause for dismissal and the decisions of a r b i t r a t o r s . It was found, however, that employees dismissed for reasons related to work performance stood a better chance of being reinstated with f u l l back-pay than grievors dismissed for other reasons. 5. No relationship emerged between the decisions of a r b i t r a t o r s and the occupations of the grievors. 6. The decisions of those a r b i t r a t o r s widely used and those of a r b i t r a t o r s used sparingly were found to be v i r t u a l l y i d e n t i c a l . 7. The addition of an employer and union nominee to a board of a r b i t r a t i o n had no o v e r a l l bearing on the f i n a l outcome. The decisions of sole a r b i t r a t o r s and t r i p a r t i t e boards of a r b i t r a t i o n were very nearly the same. 83 8. No r e l a t i o n s h i p was found to e x i s t between the i n d u s t r i e s from which the g r i e v o r s came and the outcomes of the a r b i t r a t i o n s . 9. A r e l a t i o n s h i p was found to e x i s t between o r g a n i z a t i o n a l s i z e and the l i k e l i h o o d of a d i s c h a r g e being upheld. Employers of more than 5000 employees were 50 percent more s u c c e s s f u l than employers of l e s s than 500 employees in c o n v i n c i n g a r b i t r a t o r s of the n e c e s s i t y to impose as strong a d i s c i p l i n a r y a c t i o n as d i s c h a r g e . Furthermore, the l a r g e s t percentage of awards o r d e r i n g reinstatement with f u l l back pay occurred among employers of l e s s than 500 employees. The most important c o n t r i b u t i o n of t h i s study l i e s in i t s p r a c t i c a l i m p l i c a t i o n s . One of the c e n t r a l concerns of the t h e s i s was to uncover reasons which would h e l p e x p l a i n why employers i n B r i t i s h Columbia have experienced such a poor re c o r d i n discharge a r b i t r a t i o n s . What appears to be a very important i n g r e d i e n t of that problem was i d e n t i f i e d , namely a lack of s k i l l s on the p a r t of employers with small labour f o r c e s i n a d m i n i s t e r i n g d i s c i p l i n e . I t appeared i n too many cases that these employers were simply unaware of the a d m i n i s t r a t i v e procedures to follow p r i o r to imposing the d i s c h a r g e p e n a l t y . F a i l u r e to n o t i f y an employee of h i s / h e r shortcomings p r i o r to d i s m i s s a l , and f a i l u r e to document those exchanges were the most frequent d o w n f a l l s small labour f o r c e employers experienced. The data speaks for i t s e l f . Employees dis m i s s e d by employers of l e s s than 500 workers were more l i k e l y to have had c l e a n work records than to have been p r e v i o u s l y d i s c i p l i n e d f o r a r e l a t e d form of misconduct. Employees d i s m i s s e d by employers of more than 5000 employees were, by comparison, twice as l i k e l y to have been p r e v i o u s l y d i s c i p l i n e d f o r an o f f e n s e s i m i l a r i n nature to the one which prompted the d i s m i s s a l than to have had c l e a n work r e c o r d s . One cannot h e l p but b e l i e v e that many cases i n v o l v i n g 84 small labour f o r c e employers would never have reached the a r b i t r a t i o n stage had these employers been more cognizant of the proper steps to f o l l o w when imposing d i s c i p l i n e and had been made aware of the probable consequences should they decide not to f o l l o w those s t e p s . The e x i s t e n c e of the above data i s most d i s t u r b i n g given there i s nothing e x c e p t i o n a l l y d i f f i c u l t about implementing a program of p r o g r e s s i v e d i s c i p l i n e . The general p r i n c i p l e s can be both e a s i l y understood and a p p l i e d . C l e a r l y there i s a need to educate employers about the proper methods of d i s c i p l i n i n g t h e i r labour f o r c e s i n today's era of i n d u s t r i a l r e l a t i o n s . T h i s should be an o b j e c t i v e of employers, unions, and government o f f i c i a l s . Grievance a r b i t r a t i o n has become an expensive p r o c e d u r e . 1 Employers and unions bear the brunt of the c o s t s a s s o c i a t e d with a r b i t r a t i o n . But the Government should be concerned as w e l l . The e f f i c i e n c y of the grievance a r b i t r a t i o n p rocess may be being u n n e c e s s a r i l y j e o p a r d i z e d by p l a c i n g before boards of a r b i t r a t i o n d i s p u t e s which should more a p p r o p r i a t e l y have been s e t t l e d by the p a r t i e s themselves. Having i d e n t i f i e d t h i s problem, what then i s the s o l u t i o n ? I t has been suggested that one p o s s i b l e s o l u t i o n i s to make employers aware of the concept of c o r r e c t i v e d i s c i p l i n e and how x D a v i d Bruce, "A Survey of A r b i t r a t i o n Costs i n B r i t i s h Columbia," Labour Research B u l l e t i n , February, 1979, p. 17, r e p o r t s that d u r i n g 1977 the average cost to the p a r t i e s i n g r i e v a n c e a r b i t r a t i o n s i n v o l v i n g a s i n g l e a r b i t r a t o r was $2160, and that t h i s f i g u r e was $2930 when a multi-member board of a r b i t r a t i o n heard the g r i e v a n c e . 85 i t i s p r a c t i c a l l y applied. Who should organize that project, which employers should receive information, and how the program should be funded, are just a few of the questions that must be asked. Perhaps such a project is simply unfeasible for p o l i t i c a l , f i n a n c i a l , or p r a c t i c a l reasons. Perhaps the only way many employers w i l l continue to learn of the proper ways of administering d i s c i p l i n e w i l l be by learning of their mistakes in a r b i t r a t o r s ' awards. If however an educational package of some description could be devised and successfully implemented the benefits could be far-reaching and enjoyed by a wide range of individuals. Assessing the f e a s i b i l i t y of such an educational program is a project in and of i t s e l f , and given the possible benefits, one which is worthy of immediate attention. F i n a l l y , i t seems appropriate at t h i s time to suggest a follow-up to t h i s study. The analyses contained in t h i s thesis have been global in nature. What now appears to be needed i s a micro analysis. Case-by-case examinations of dismissals a r i s i n g at a small number of predetermined firms should be undertaken. At t h i s l e v e l of analysis, for example, the decision making process of employers in applying d i s c i p l i n e , and of unions in responding to those actions can be better understood. By following t h i s level of analysis solutions to many of the questions l e f t unanswered in this thesis may be found. 86 SELECTED BIBLIOGRAPHY Adams, George W. "Concepts of Industrial D i s c i p l i n e and Their Results." Paper presented at the Industrial Relations Centre, Queen's University, Kingston,Ontario, 12 May 1978. Baer, Walter E. Practice and Precendent in Labor Relations. Lexington: D.C. Heath and Company, 1972. Baer, Walter E. D i s c i p l i n e and Discharge Under the Labor Agreement. New York: American Management Association, 1972. Bird, R.B. "Substitution of Penalites Under the Labour Code." In Grievance Ar b i t r a t i o n : A Review of Current Issues, pp. 61-76. Edited by M.A. H i c k l i n g . Vancouver, B.C.: Institute of Industrial Relations, 1977. Boise, William B. "Supervisors' Attitudes Toward D i s c i p l i n a r y Actions." Personnel Administration, 28 (1965) 24-27. Brown, D.J.M. and Beatty, D.M. Canadian Labour A r b i t r a t i o n . Agincourt: Canada Law Book Limited, 1977. Davey, H.W. "How Arbitrators Decide Cases." The A r b i t r a t i o n Journal, 27 (1977), 297-287. Davey, H.W. "The Arbitrator Speaks on Discharge and D i s c i p l i n e . " The A r b i t r a t i o n Journal, 17 (1962), 97-104. Davis, Pearce and P a t i , Gopal C. "Elapsed Time Patterns in Labor Ar b i t r a t i o n : 1942-1972." The A r b i t r a t i o n Journal, 29 (1974), 15-27. Elkouri, Frank and Elkouri Edna A. How A r b i t r a t i o n Works. Third E d i t i o n . Washington, D.C: The Bureau of National A f f a i r s , Inc. 1973. Fisher, Robert W. "Arbitration of Discharge Cases." Monthly Labor Review, 91 (1968) 1-5. Fleming, R.W. The Labor A r b i t r a t i o n Process. Urbana: University of I l l i n o i s Press, 1965. Holly, Fred J. "Considerations in Discharge Cases." Monthly Labor Review, 80 (1957), 684-688. Jennings, Ken and Wolter, Roger. "Discharge Cases Reconsidered." The A r b i t r a t i o n Journal, 31 (1976), 164-180. 87 Jones, Dallas L. "Ramifications of Back-Pay Awards in Suspension and Discharge Cases." In Arbitration and Social Change, Proceedings of the Twenty-Second Annual Meeting, National Academy of Arb i t r a t o r s , pp. 163-175. Edited by Gerald G. Somers, Washington, D.C: BNA Books, 1969. Kadish, Sanford H. "The Criminal Law and Industrial D i s c i p l i n e as Sanctioning Systems : Some Comparative Observations." In A r b i t r a t i o n and Social Change, Proceedings of the Twenty-Second Annual Meeting, National Academy of Arbi t r a t o r s , pp. 125-144. Edited by Mark L. Kahn. Washington, D.C: Bureau of National A f f a i r s , 1964. Larson, Dalton L. "Probationary Employees." In Grievance Ar b i t r a t i o n : A Review of Current Issues, pp. 77-100. Edited by M.A. Hickling. Vancouver, B.C.: Institute of Industrial Relations, 1977. Levin, N.A., ed. Arb i t r a t i n g Labor Cases. New York: Practicing Law I n s t i t u t e , 1974. Myers, Howard A. "Concepts of Industrial D i s c i p l i n e . " In Management Rights and the Ar b i t r a t i o n Process, Proceedings of the Ninth Annual Meeting, National Academy of Arbit r a t o r s , pp. 59-76. Edited by Jean T. McKelvey. Washington, D.C: BNA, 1956. Peach, David A. "Union and Management Decision Making in the Grievance Process." Relations I n d u s t r i e l l e s , 27 (1972), 757-767. Petersen, Donald J. "Why Unions Go to A r b i t r a t i o n . " Personnel, 48, No.4 (1971), 44-47. Phelps, Orne W. D i s c i p l i n e and Discharge in the Unionized Firm. Berkeley: University of C a l i f o r n i a Press, 1959. Prasow,Paul and Peters, E. A r b i t r a t i o n and Co l l e c t i v e Bargaining : C o n f l i c t Resolution in Labor Relations. New York: McGraw-Hill Book Company, 1970. Rosen, Benson and Jerdee, Thomas H. "Factors Influencing D i s c i p l i n a r y Judgements." Journal of Applied Psychology, 59 (1974), 327-331. Ross, Arthur M. "Discussion" of'Sanford H. Kadish, "The Criminal Law and Industrial D i s c i p l i n e as Sanctioning Systems : Some Comparative Observations." In Labor Arbitration-Perspectives and Problems, Proceedings of the Seventeenth Annual Meeting, pp. 144-152. Edited by Mark L. Kahn. Washington, D.C.:Bureau of National A f f a i r s , 1964. Stessin, Lawrence. Employee D i s c i p l i n e . Washington, D.C: The Bureau of National A f f a i r s , 1960. 88 Teele, John W. "But No Back-Pay i s Awarded." The Arbitration Journal, 19 (1964), 103-114. Teele, John W. "The Thought Process of the A r b i t r a t o r . " The Ar b i t r a t i o n Journal, 17 (1965) 85-95. . Updegroff, CM. Ar b i t r a t i o n and Labor Relations. Washington, D.C. BNA, 1970. APPENDIX 1 Occupational C l a s s i f i c a t i o n Managerial, administrative and related occupations. Occupations in natural sciences, engineering and mathematics Occupations in social sciences and related f i e l d s , - s o c i a l work - l i b r a r y , museum, archival Teaching and related occupations. Occupations in medicine and health, -health diagnosing and treating -nursing, therapy, and related a s s i s t i n g A r t i s t i c , l i t e r a r y , recreational and related occupations. C l e r i c a l and related occupatio"ns. -stenographic and typing -bookkeeping, account -recording and related - o f f i c e maching and electronic data -processing equipment operators -material recording, scheduling, and d i s t r i b u t i n g - l i b r a r y , f i l e and correspondence clerks -reception, information, mail and message d i s t r i b u t i o n -other c l e r i c a l Sales occupations, -commodities -services 'Service occupations. -protective services -food and beverage preparation -lodging and other accomodation -personal service -apparel and furnishings -other service Farming, h o r t i c u l t u r a l and animal husbandry. Fishing, hunting, and trapping. Forestry and logging. 90 Mining and quarrying including o i l and gas. Processing occupations, -mineral ore treating -metal processing -clay, glass and stone processing, forming -chemicals, petroleum, rubber, p l a s t i c -food and beverage -wood processing including pulp and papermaking - t e x t i l e Machining. -metal machining -metal shaping and forming -wood machining -clay, stone and gas Product fab r i c a t i n g , assembling, and repairing, -metal products - e l e c t r i c a l -wood - t e x t i l e s , fur, leather -rubber, p l a s t i c -mechanics and repairs Construction trades. -excavating, grading, paving - e l e c t r i c i a n s -painters -plumbers and boilermakers -carpenters -other Transport equipment operating occupations, - a i r -railway -water -motor Materials handling and related occupations. Other equipment operating occupations, -pr i n t i n g -stationary engineers and u t i l i t i e s equipment operating General labourers. . Note: Based on c l s a s s i f i c a t i o n scheme adopted in 1971 Census of Canada. See: S t a t i s t i c s Canada, 1971 Census of Canada: Occupations, Catalogue 94-736, V o . : l l l Part 3 (B u l l e t i n 3.3-9). 91 APPENDIX 2 Industrial C l a s s i f i c a t i o n PRIMARY INDUSTRY—this i n d u s t r i a l group is involved with resource extraction. Fishing, mining, and logging are B r i t i s h Columbia's major primary industries. CONSTRUCTION INDUSTRY--the construction industry includes building construction, highway construction, bridge construction, and specialized construction such as dam construction. Operating within this industry are general contractors and special trade contractors. MANUFACTURING—the term used to describe industries which process resources in order to produce finished goods. Food and Beverage Industry—a manufacturing industry producing food and/or beverage goods through some process. This industry is d i s t i n c t from the agriculture industry and/or trade industry because of i t s processing function. Forest Products—the industry producing lumber, plywood, wooden boxes, and c o f f i n s as well" as pulp, paper, and paper products. Printi n g , Publishing, and A l l i e d Industries—commercial p r i n t i n g , stereotyping, publishing, and associated a c t i v i t i e s belong to t h i s i n d u s t r i a l group. Primary Metal and Metal Fabricating Industry—the industry processing metal ores through smelting, r e f i n i n g , casting, and r o l l i n g , in order to produce metals in bulk form or in the form of a simple fabricated product such as bo i l e r s , ornamental metal, stamped metal, wire casting, forging, etc. Machinery, Transportation and E l e c t r i c a l Equipment--this industry is primarily concerned with the production of machinery, transportation equipment and e l e c t r i c a l products but also involves equipment repair and parts production. Miscellaneous Manufacturing—industries of minor importance in terms of union membership concentrations. Some of the industries in this group are tobacco industry, the rubber industry, the furniture industry and the chemical industry. TRANSPORTATION, COMMUNICATION AND OTHER UTILITIES—air, land, and sea transport, storage, communication and provision of u t i l i t i e s such as e l e c t r i c a l power and sewers are the a c t i v i t i e s associated with this industry. TRADE—the wholesale, r e t a i l and market functions are the a c t i v i t i e s of the trade industry. SERVICE INDUSTRY—this industry i s composed of five sub-industries. Educational S e r v i c e s — t h i s sub-industry covers the elementary through secondary educational services and u n i v e r s i t i e s , but not l i b r a r i a n s . Health and W e l f a r e — t h i s sub-industry covers a l l private and public health and welfare service. Other S e r v i c e s — a l l other community, business, and personal services not covered by the school and health and welfare sub-92 goups. Municipal S e r v i c e s — t h i s sub-group covers a l l municipal government employees from policeman through urban planners. Provincial Administration—covers the employees of the pro v i n c i a l government. Source: B r i t i s h Columbia Ministry of Labour, B.C. Labour Directory ( V i c t o r i a : Queen's Printer, 1974), p.11. NOTE: Not a l l of the industries described f a l l under the j u r i s d i c t i o n of the B r i t i s h Columbia Labour Code and thus l i e outside the scope of t h i s study. 93 APPENDIX 3 Chairmen of A r b i t r a t i o n Boards Appearing in the Sample Studied J.C. Sherlock (41) E.H. Mosby (1) R.B. Bird (18) Morley D. Shortt (1) R.G. Clements (17) R.P. Gibbons (1) R. Neil Monroe (13) D.G. MacDonald (1) J.M. Maclntyre (12) D. Duff (1) Cliv e McKee (12) R.A. MacDonald (1) R.G. Herbert (10) Bruce Rolson (1) Mervin Chertkow (10) James P.R. Mason (1) Bryan Williams (9) Joe Weiler (1) Dalton L. Larson (9) Lee Leibik (1) Donald R. Monroe (5) Mary F. Southin (1) Kenneth C. Murphy (4) J.L. Gallager (1) D.R. B l a i r (4) John Brown (1) H.A. Hope (3) George A. Goyer (1) W.H. Sands (3) Angus MacDonald (1) J.C. Smith (3) Gordon H. Gilmour (1) CR. Margeson (2) Ronald C E . Mellett (1) M.A. Hickling (2) H.A. Callaghan (1) D. Sutton (2) W. James William (1) B.B. Trevino (2) Paul Sims (1) T. F i n k e l s t e i n (2) Lyle Anderson (1) Paul D.K. Fraser (2) L. McGrady (1) Terrence P. Warren (2) D.T. Wetmore (1) Clark (2) William Davis (1) A.W. B i l s l a n d (2) H.G. Ladner (1) Bruce McColl (1) L.J. Glasner (1) Gordon Wilson (1) R.S.S. Wilson (1) K.C MacRae (1) Frank Maczko Terry J. Wuester R.E. Cocking (1) Note: The figures in parenthesis represent the number of decisions an a r b i t r a t o r f i l e d which f e l l into one of the four outcome categories.
UBC Theses and Dissertations
An analysis of discharge arbitrations in British Columbia : 1974-1977 Eeckhout, Tomi Richard 1981
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