Petition for Writ of Certiorari — Yellow Cab Co. v. Democratic Union Organizing Committee, Local 777

SUPREME COURT. L.

No. 631

In the

Supreme Court of the Anited States

Octoser TERM, 1968.

YELLOW CAB COMPANY,

a Maine corporation,

Petitioner,

vs.

DEMOCRATIC UNION ORGANIZING COMMITTEE,

LOCAL 777, S.I.U.N.A., AFL-CIO,

Respondent.

—— —_

APPENDIX

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH OIRCUIT

Rosert BE. HayTHorne

130 East Randolph Drive

Chicago, Illinois 60601

Counsel for Petitioner

Of Counsel:

Krextanp, Ex.trs, Hopson, Cuarretz & Masters

130 East Randolph Drive

Chicago, Illinois 60601

The Scheffer Press, Inc—ANdover 38-6850

INDEX

Memorandum Order of District Court 1

Decision and Award of Arbitrator .. saidaiieabaiainie 3

Supplementai Decision and Award of Arbitrator ........ 26

eaten AN tm i ea CN anh. lalla ile de

In Tue

SUPREME COURT OF THE UNITED STATES

Ocroser TERM, 1968.

No. 631

YELLOW CAB COMPANY,

a Maine corporation,

Petitioner,

vs.

DEMOCRATIC UNION ORGANIZING COMMITTEE,

LOCAL 777, S.1.U.N.A., AFL-CIO,

Respondent.

APPENDIZ

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Memorandum Order of United States District Court for

the Northern District of Illinois, Eastern Division:

Unrrep States District Court

* * (Caption—No. 67 C 890) * *

Nemorandum Order

This cause is before the court on the pizintiff’s petition

which seeks to vacate an arbitrator’s award and on the

cross-petition of defendant which seeks an order of this

court confirming or enforcing that award. Each party has

made a motion for summary judgment and the court,

having examined and considered the said motions, to-

gether with the pleadings herein, the briefs submitted by

counsel and the supporting affidavit submitted by defen-

dant, finds that there is involved here no genuine issue

as to any material fact.

The court further finds that the Arbitrator did not

exceed his authority under the collective bargaining

agreement and that it does not appear that the Arbitrator

in his decision and award was biased or partial to the

union.

Petitioner contends, in the instant proceeding, that

there was a failure to comply with certain contractual

provisions relating to procedural steps to be taken in the

matter of grievances and their submission to arbitration.

This contention was also raised before the Arbitrator who

considered and ruled upon it, holding that the procedural

requirements had been met. This court will not review

that determination. The United States Court of Appeals

for the Seventh Circuit in Local Union No. 51, Inter-

national Brotherhood of Electrical Workers, AFL-CIO

vs. Illinois Power Co., 357 F.2d 916 (which cites John

Wiley & Sons vs. Livingston, 376 U.S. 543) has held that

it is for the Arbitrator to determine procedural questions

which grow out of the dispute and bear on its final

disposition.

The court is of the view that the contentions made by

defendant cross-petitioner in support of its motion for

summary judgment should be sustained.

It is Ordered, Adjudged and Decreed that—

(1) The motion made by defendant cross-petitioner,

Democratic Union Organizing Committee Local 777

S.LU.N.A., AFL-CIO, for summary judgment in its favor,

dismissing Petitioner’s petition and confirming and en-

forcing the decision and award of the Arbitrator be and

it hereby is granted.

(2) The motion made by petitioner cross-defendant,

Yellow Cab Company, for summary judgment in its favor

be and it hereby is denied.

(3) Each of the parties will pay its own costs.

Enter:

/s/ J. S. Perry

Judge

Dated: Chicago, Illinois

January 12, 1968.

Decision and award of Arbitrator:

American Arbitration Association, Administrator

In the matter of the 7

Arbitration between

Yettow Cas Company and , No. 51 30 0202 66

DUOC, Locat 777, TS&AW,

SIUNA, AFL-CIO. }

Decision and Award of Arbitrator

Pursuant to the collective bargaining agreement between

the parties and pursuant to the procedures of the American

Arbitration Association, the undersigned was designated

arbitrator to hear a grievance between the Yellow Cab

Company, sometimes hereinafter referred to as the com-

pany, and the Union involving the discharge of Harold

Ray, sometimes hereinafter referred to as grievant. The

hearings were held at the offices of the American Arbitra-

tion Association, Chicago, Illinois, on November 28, and

December 15, 19, and 20, 1966, and on January 5, 1967.

The appearances were:

oitin

Kirkland, Ellis, Hodson, Chaffetz & Masters

by Emil F. Meier

appeared on behalf of the company,

Katz & Friedman

by Irving M. Friedman

appeared on behalf of the union.

The arbitrator was supplied with a stenographic tran-

script consisting of 674 pages and a total number of 89

exhibits were introduced, 48 by the company, 40 by the

union, and one joint exhibit. Post-hearing briefs were

filed by the parties and were received by the arbitrator

on or about February 7.

Background Facts

On May 10, 1966, grievant was discharged from his

position as a cab driver for the company because he was

“not suitable for the work” (42). Grievant had been an

employee of the company for three months in 1926, for

two years between 1942 and 1944, for three months in

1960, and from March, 1962 until his discharge in May,

1966 (R 48). A. H. Rhodes, the General Manager, made

the decision to discharge grievant (41). The reason for

his decision was that grievant had had his cab towed in

on May 3 and May 7, 1966, and that the company thought

that the towing on those occasions had been unneces-

sary (44).

There were three incidents between May 3, 1966 and

May 7, 1966, which were out of the ordinary. Each of the

three involved a different cab, and the relevant facts of

each will be set out separately below.

On May 3, 1966, grievant became ill while driving his

cab. He testified the cause of this illness to be fumes en-

tering the cab (339-40). He called for a tow truck and had

ae

the cab towed into the garage (341). On May 4, 1966, the

cab was tested for fumes by two members of the garage

personnel, a mechanic and the assistant supervisor (131).

They rode for approximately 7 miles at speeds ranging

from 10 to 60 miles per hour (90). They detected no fumes

(91, 121). No test utilizing any equipment especially de-

signed to detect fumes was conducted (104). There was a

conflict in testimony as to whether leaks in an exhaust

system always make some noise audible over ordinary

motor noises (93-4, 431). The daytime driver of the cab

testified that he had never had trouble with fumes in the

cab, and more particularly, that he had not had trouble

with fumes in the cab during the first week in May, 1966

(133, 142). A previous daytime driver of the cab testified

that he had never had trouble with fumes in the cab and

that grievant was constantly complaining about non-exis-

tant difficulties with the cab (616, 622-3).

On May 4, 1966, grievant was issued a different cab.

He drove the cab hack to the garage after only four trips

and three hours (351, Co. Ex. 4). He stated at the hearing

that he had again become ill while driving from fumes

(351). When he returned the cab to the garage, however,

he refused to state any grounds for his action (352-3). He

stated that he had been unable to shut off the air intake

system in the cab (350). The regular driver of this cab

testified that he had not had any trouble with the cab

either before or after May 4, 1966 (581). His meter

envelopes showed that he had worked full days with this

cab both immediately preceding and immediately follow-

ing the day grievant had the cab (Co. Exs. 36-40). The

written statement grievant gave the company to explain

his actions on the day in question did not mention fumes

or any other trouble with the cab (Co. Exs. 5 and 6).

A considerable amount of evidence relating to the heat-

ing and ventilating system on the cars used by the com-

pany was introduced. These automobiles have the intakes

for the heating and ventilating system directly under the

headlights at the front end of the cab (100). Exhibits

were presented which tend to show that the exhaust from

any vehicle in front of a cab will enter the air intake

system directly (Union Exs. 23-33). Other evidence was

introduced which tends to show that many automobile

manufacturers place air intakes at the base of the wind-

shield where they are more removed from the source of

exhaust fumes on the cars ahead (Union Exs. 34-36).

Grievant testified that it was not unusual for a cab to

wait for up to two hours in the cab line at O’Hare Inter-

national Airport (409). A driver for the Checker Cab Co.

—which uses cars similar to those used by the company—

testified that on one occasion he was rendered unconscious

while waiting in the cab line at O’Hare (559). He said he

observed two drivers for the company who also appeared

to be unconscious (558-9). All three had been in the cab

line for over an hour (560, 563). He was told at the time

that he had been overcome by exhaust fumes (561). A

mechanic for the company testified that if the air intake

was jammed open, exhaust fumes from the vehicle ahead

would enter the cab (428).

Grievant had a third cab towed in on May 7, 1966. He

was on his first run, and the cab kept dying (358). The

tow truck driver could find nothing wrong with the cab,

and told grievant to drive it in (358, 145-6). Grievant re-

fused, stating that besides the motor dying there were

several other specific defects in the cab, including sul-

phuriec acid fumes in the passenger compartment (358-9)

These fumes were from the battery in the trunk (361).

He told the driver he considered the cab a safety hazard

—

(359). Upon his return to the garage, grievant was told

he could not have another cab until he had talked with

the General Manager of the Company, Mr. A. H. Rhodes,

on the following Monday, May 9, 1966. Grievant went to

see Mr. Rhodes on May 10, 1966, after having made an

appointment, and was told that he was discharged because

he was “not suitable for the work.”

A mechanic testified that he had put a new battery and

alternator into the cab on the morning of the seventh, and

that they had tested out perfectly (92-3). Another

mechanic testified that there is no wall between the pas-

senger compartment and the trunk where the battery is

located (413). During the two years that this witness had

driven for the company, he had often had trouble with

battery fumes (418). Other drivers often complain about

acid fumes (419). The regular driver of the cab testified

that he often had trouble with the cab, on the average of

once a week (181-2). He had noticed acid fumes in the

cab on several occasions during the week preceding May

7, 1966, and had reported the trouble (191-2). The

mechanic who inspected the cab after it was towed in

testified that it seemed to run well, and that he did not

notice any acid fumes (165-6). This witness, however,

admitted that he did not particularly like the grievant,

(167) and that he knew grievant was in trouble with the

company when he made his inspection (172). The cab was

removed from service by accident within a month of the

occasion in question (630-1), and although it would have

required only two hours work to return it to service, the

company did not do so (637).

Although these three occasions were given by the com-

pany as the basis for the discharge, there was another

previous occasion where grievant had noticed fumes in his

cab which should be noted. On March 27, 1966, grievant

noticed fumes in his cab while driving from O’Hare air-

port (330). He became too sick to drive, so he called

a tow truck and had his cab towed into the garage (331).

Grievant then went to Weiss Memorial hospital (332).

The doctor there told him that he did not have the facil-

ities to run a carbon monoxide test, anad that grievant

would have to go to Wesley Memorial Hospital to get one

(332-3). Grievant requested that the Safety Department

of the company provide him transportation to Wesley.

There was a misunderstanding between the Safety Super-

visor and grievant, resulting in the Safety Supervisor’s

leaving grievant at Weiss (334-4, 603-7). Grievant went

home (334). He was off work for a week or ten days

(335). He filled out a statement relating to the incident

for the company in which he said that he suffered some

loss of memory (336, Union Ex. 11). The company tried

to persuade him to remove that statement, but grievant

refused (337-8).

The mechanic who fixed the cab testified that he had

replaced the entire exhaust system because a piece of the

tail pipe had broken off (558). This was the same cab

grievant had on May 3, 1966. Grievant appears to be

quite concerned about carbon monoxide poisoning, and

has collected a considerable amount of literature relating

to it (344). Some of this literature was admitted into

evidence (Union Exs. 12-13).

Grievant conducted several campaigns while he was

employed by the company. In 1964, he ran for president

of the union (374-5). He had also conducted one-man

campaigns relating to wages and safety conditions in ga-

rages and cabs (375-6). During the course of these various

campaigns, grievant has made critical and derogatory re-

marks about both the company and the union leadership.

These statements were made in open letters to the drivers,

handbills, and articles and letters to the editor in Chicago

newspapers (Union Exs. 14-18). On several occasions,

grievant publicly accused the company of sending drivers

out with cabs which accumulated so much carbon monoxide

that they were “mobile gas chambers.” (Union Ex. 18.)

Mr. A. H. Rhodes, the man who decided io fire grievant,

said that he was aware of grievant’s activities and that

many of grievant’s public statements were in the file he

considered before he decided to discharge grievant (46-7,

216-21).

The company presented evidence that the grievant de-

sired to be discharged. One company witness said griev-

ant on several occasions asked him what he had to do to

get fired (251-2). Grievant told him that he wanted to be

fired so he could get unemployment insurance for 26

weeks, and then he wou'd be 6Z and could go on social

security (253). This was jJenied by grievant (368). He

claimed that he never made any statement of this nature.

The company witness testified that these conversations

were in March or February, 1966. However, grievant was

62 in December, 1965 (327). Another company witness

asserted that he overheard the conversation testified to

by the first witness, and that the conversation was as he

testified (618, 621).

Although it was usual company policy to warn a driver

before discharge (225), grievant was not warned (225-6,

361). The company did not explain why. Employees who

have been discharged are often rehired (229). Some have

been discharged and rehired more than once (232). Some

who were discharged for stealing from the company has

been rehired (235-6). The union and the company meet

nearly every Friday to discuss reinstatement of dis-

charged men. Many men regain their jobs as a result of

iD ae at Th . " -_

ag ake eR ARSARL esied GRIPE OEY AN OO RO LA nth alaeaiead ”

—

these meetings even though they were discharged for

stealing or drinking on the job: (230, Union Ex. 10).

The grievant was not allowed into the meetings regard-

ing his grievance even though the union ao requested (285-

6, 296). The company nearly always grants a request of

this nature (291, 308). The company refused to be specific

about the reasons for grievant’s discharge (285-6, 296),

and two company representatives made remarks about

what a gadfly grievant was and that the company would

rehire him if the union would shut him up (305).

The company asserted that grievant’s actions since his

discharge indicate that he did not want to be rehired.

On May 17, grievant wrote to Senator Abraham A.

Ribicoff complaining about the alleged unsafety of the air

intake system on the company’s cars (Union Ex. 18). On

May 19, 1966, grievant wrote to the company’s insurance

carrier about alleged unsafe conditions in specified com-

pany garages (Union Ex. 17). In the May 19 letter,

grievant alleged that the boilers in these garages were

unsafe. However, grievant admitted that he had not in-

spected the boilers prior to writing the letter (516-9). He

asserted that he had stopped at all but three of the

garages on the list during the course of his employment

(526), and that these garages did not have facilities for

exhausting paint spray fumes, another alleged unsafe

condition (527). He stated that he wrote the letter be-

cause he felt it was his duty as s citizen and that he

would have written it if he had not been discharged

(532-3). He did not know whether or not he had been

in the garages listed in the letter of May 19 within six

months of the time he wrote it (534).

Finally, grievant asserted that he could not get neces-

sary repairs made on his cab (375, 451). This assertion

ee. , hiss HEAL Sevgoa.> vas. Lesa GR

=— ee

was denied by the garage manager (634). Grievant as-

serted that at one point he had been forced to go to a

company official at the main office to get necessary repair

work done (369-70, 373).

Relevant Contract Provision

The relevant contract provisions read as follows:

“Article IV—Suspension, Discharge and Layoffs—

Grievance Procedure.

“Section 1—Without limiting, in any way, the

grounds of just cause for discharge, the Company

shall have the right to suspend or discharge any

chauffeur guilty of the following offenses:

(1) Use of intoxicants while on duty;

(2) Dishonesty ;

(3) Gross carelessness in operation of cab;

(4) Discourtesy to patrons;

(5) Failure to report an accident;

(6) Having an accident involving serious personal

injury caused by his negligence;

(7) Excessive accident frequency ;

(8) Consistent low bookings;

(9) Excessive unpaid mileage;

(10) Excessive gasoline consumption;

(11) Habitual irregularity of attendance or failure

to observe written Company rules.

7 * 2

“Section 5—Any other grievances including those

involving the suspension or discharge of an employee

shall be submitted by the Union directly to the Com-

pany’s representative at the Central Office, as pro-

vided in Step 2 of the grievance procedure.

(A) A statement in writing signed by the ag-

grieved employee of his version of the contro-

= =

versy which led to his suspension or discharge

suail be submitted to the representative of the

Company, together with the written siatement

of the grievance.

<B) Any employee who bas been suspendsd or

discharged shall be afforded the opportunity of

a hearing, accompanied by the Union’s repre-

sentative before the representative of the Com-

pany.

“Section €6—Any grievance which is not appealed in

- writing from one step of this grievance procedure to

the next step within ten (10) days after such decision

shali be considered az settied on the basis of the last

decision and shall not be subject to further appeal,

provided, however, that in the case of grievances

which may be referred to arbitration, the time for

appeal shall be twenty (20) days rather than ten

(16) days.”

Disevssicn ©

One preliminary matter should be dealt with. Some of

the evidence presented at the hearing indicated that the

grievant believes, or at least at one time delieved, that his

discharge was the resnit of collusion between the company

and the union (CF: Co. Exs. 11 and 11A). At the conclu-

sion of the hearing the grievant stated that he would not

offer any evidence of such collasion (655). He also stated

that he had been given a full and fair hearing of the

grievance (656). The arbitrator regards the charge of

coilusicn as withdrawa and will accordingly make no

decision regarding the maiter.

- At the outset of the case tho company has challenged

the right of the claimant to arbitration on the ground that

—

he has failed to comply with the requirements of Section

5{A) of Article [IV which reads as follows:

“(A) A statement in writing signed by the ag-

grieved employee of his version of the controversy

which led to his suspension or discharge shall be

submitted to the representative of the Company, to-

gether with the written statement of the grievance.”

The company concedes that written grievances and state-

ments have not been previously required and that numer-

ous grievances have been presented by the union both be-

fore and after Ray’s discharge, which were not reduced

to writing. The company also relies on Article V, Section

1, which reads as follows:

“Section 1—-If the parties herein shall be unable to

reach a settlement of a grievance, either party may

submit the grievance to arbitration by sending to the

other party by registered or certified mail within

twenty (20) days, or within the additional period o*

ten (10) days, as extended by written agreement of

the parties, after the decision of the representative

of the Company, a notice in writing in which the

matter to be arbitrated is clearly set forth.”

It contends that the company representative gave the

devzision of the company on May 13, and no request was

made for arbitration until! August 5, 1966, despite the fact

that the grievance was in the hands of the union attorneys

as early as May 20. June 2 it claims was the last day on

which the case could be taken to arbitration.

It appears clear from the provisions of Article V that

the purposes of the procedure established is to encourage

the settling of grievances between the parties prior to

the time they are taken to arbitration. The record shows

—

numerous grievances settled by the parties including many

discharges which were reduced to reinstatements. Al-

though the company on May 13, 1966 rejected the griev-

ance, there is nothing in the record to suggest that this

of itself terminated the possibilities of the parties’ reach-

ing a settlement of the grievance. The company may have

regarded its decision as final. The union apparently did

not regard the company’s decision as being unsusceptible

to change and accordingly reopened the grievance for re-

consideration on a later date. The purposes of the griev-

ance procedure would be frustrated if the provisions of

the agreement are narrowly construed to require that

arbitration must be resorted to when the company first

denies grievances. Experience dictates that what is ap-

parently a firm position may yield to change or compro-

mise in the course of time and in the course of discussions.

The issue as the arbitrator sees it is whether or not

there was a reasonable basis for the union’s belief that

the grievance was still open for discussion and possible

settlement. The arbitrator cannot say on the face of the

record that there was no basis for this belief. Accordingly

it is the arbitrator’s opinion that the twenty day period

within which arbitration is to be requested should be

measured from the last discussion of the matter between

the union and the company. Arbitration in this case was

requested within the twenty-day period and there is there-

fore no substantial basis for the company’s claim that the

contract provisions had not been complied with.

We next come to the claim of the union that the grievant

was denied his opportunity for a fair hearing under pro;

visions of Article IV, Section 5(B), which reads: —~/

“(B) Any employee who has been suspended or

discharged shall be afforded the opportunity of a

=

hearing, accompanied by the Union’s representative

before the representative of the Company.”

The grievant was suspended on May 7 and was told to

see Mr. Rhodes on the following Monday, May 9. On that

day he called Rhodes and asked if he could bring someone

from the union with him. Rhodes agreed to this. Later

the grievant called Rhodes to say he could not get anyone

from the union and it was then agreed that, at the griev-

ant’s request, he would come in the next day.

After being kept waiting for some period of time, the

grievant was seen by Mr. Rhodes. He came in without a

union representative. He was told he was discharged be-

cause he was unsuitable for the work. At this point, the

grievant testified “with that I left.” There is nothing in

the record to indicate that Ray was not permitted to make

any presentation that he wished to make and he did not

in fact offer any facts or arguments bearing upon the

discipline imposed against him. On the following Friday,

the regular weekly grievance meeting took place. The Ray

case was one of the cases considered. No arguments were

advanced by the union committee except that a request

was made that the grievant be brought into the hearing

room.

The practice of the parties in the grievance hearings

is not altogether clear. It appears that in many cases the

grievant is permitted to come into the hearing room, other

times he is not given this permission. The grievant was

available and could have been brought in. The contract

provisions afford the grievant an opportunity for a hear-

ing accompanied by the union’s representative. In fact,

the grievant was given this opportunity when he made

an appointment with Mr. Rhodes but chose to appear

without a union representative. Accordingly, it cannot be

gliiiicns

said that the provisions of Article IV, Section 5(B) were

not complied with by the company. It should be said that

the company was ill advised in not permitting the griev-

ant to come into the hearing room during the grievance

committee meeting. The denial of such an opportunity

would have no effect except to strengthen the employee’s

conviction that he was being unfairly dealt with.

We come next to the union’s contention that the com-

pany’s failure to state a reasonably specific reason at the

time of discharge makes this discharge invalid. Grievant

was told by the company that he was discharged as “not

suitable for work” and was refused an explanation of

what this meant. The union was given the same reason

without an explanation. Article IV, Section 1 of the con-

tract sets forth eleven specific grounds for “just cause for

discharge.” Suitability for work is not listed as one of

the grounds for discharge and none of the grounds spec-

ified in Section 1 of Article IV were mentioned by the

company. There is considerable merit to the union’s

argument that the claimed ground, “not suitable for work”

is so broad and so lacking in specificity as to be almoat

devoid of meaning.

The words “not suitable for work” could refer to lack

of ability or competency on the part of an employee, to

personality or character deficiencies, absenteeism, and to

a very wide range of circumstances which would lead to

a conclusion that an employee is unable to perform his

work or render unsatisfactory service. The contract con-

templates a specific ground for discharge. But even if

the contract were silent, due process requires that an

employee who has been subjected to a discharge should

know the basis for the discharge so that he can adequately

and intelligently reply to the charge both during the

—_

grievance procedure as well as in arbitration. Specificity

is an essential element of due process.

The consequences of the failure of the company to give

specific reasons for discharge is pointed up by what tran-

spired in this case. The hearing went on for five separate

days. There was a stenographic transcript consisting of

67! pages and a total number of 89 exhibits were intro-

duced. It is clear to the arbitrator that had the company

made its charges more specific, the union would have been

in a position to know what to defend against and would

not have felt compelled to have put in as much evidence

as went into this record. The fact is that the record may

have been shorter if the company, throughout the presen-

tation of its case, had consistently relied on the specific

charges set forth at the outset. Unfortunately, references

were made by the company’s principal witness to the

“entire file” of the employee, giving the impression that

the company was relying on matters other than those

specified. As it developed, the union and the grievant

were able to put in a defense to all the charges which

were made. The arbitrator realizes that this involved

considerable expense for the union, some of. which would

have been saved if the company had been more specific

in its charges. The fact is, however, that the element of

surprise as one factor to be considered was eliminated,

although this involved hearings for five days over a sub-

stantial period of time. The company’s failure to make

the charges more specific was a violation of the agreement.

But since the grievant was given an opportunity to fully

meet the charges, the element of surprise was overcome

by delay in the proceedings, this violation of the contract

by itself did not render the discharge unjust.

But there is another crucial factor in this case which

requires the arbitrator to hold that the discharge in this

cs Bucnens Sal ae ins F . , . . a —— — a

RETRO Cae Ie es Sees nee Ewa Tk CRRA DARE DORM oo

— 18 —

case cannot stand. In the brief that the company has filed

with the arbitrator it takes the position that it is basing

its discharge exclusively on the events of the first week

of May. Accordingly, the discharge must be evaluated on

this basis. These events took place on three days in the

first week, Tuesday, May 3, Wednesday, May 4, and Sat-

urday, May 7, when the grievant caused his cab to be

towed into the garage. No purpose would be served by

discussing in detail varying versions of what occurred

on the three days in question.

The arbitrator is inclined to believe on the record that

the company had just cause to complain of the grievant’s

conduct with reference to at least two of the three inci-

dents in question. But even if we assume that the grievant

was wrong on all three occasions and subjected the com-

peny to considerable expense and annoyance in having

his cab towed in, the discharge cannot stand for a very

basic reason. The record is devoid of any evidence to

show that the discharge was preceded by any type of a

warning given to the employee.

The grievant claims he was not given a warning and

there is nothing in the record to show that he was.

The record also shows that it was a normal practice for

the company to warn employees before disciplinary action

was taken. Whether or not there was such a practice, it

is established in the arbitration of discharge cases that

prior to the discharging of an employee an opportunity

should be given to him to correct his conduct. The prin-

ciple of corrective discipline is firmly established. It is

regarded unjust to impose the extreme penalty of dis-

charge without giving an employee a chance to demon-

strate that he can overcome the particular problem

involved. -

aw 19

But it is not necessary in this case to rely solely on

this established principle. The record shows the company

followed a practice of giving warnings to its employees

prior to discharge. No reason was offered by the com-

pany as to why the grievant was treated different from

other employees. There is also an element of condonation

that appears in this case arising from the fact that the

company failed to take any action against this employee

after he had his car towed in twice. This abstention

would lead the grievant to believe he could proceed with

his course of conduct without fear of punishment. In the

arbitrator’s opinion, the failure of the company to give

a warning to the grievant renders the discharge unjust.

No purpose would be served by discussing the voluminous

record in this case, with respect to other possible mis-

conduct prior to the first week of May since the company

has stated clearly and specifically that it relies solely on

the events of that week to support its discharge.

This brings us to the question of what remedies are

appropriate in this case. The contract is silent as to what

remedies shall be given in the event the arbitrator finds

the discharge is unjust. This places the matter of the

remedy within the discretion of the arbitrator. Since the

discharge was without just cause, it is clear that the

grievant is entitled to his back pay up to the time of

this award. The problem which has troubled the arbitrator

greatly and which presents the most difficulty is whether

the grievant should be reinstated in his job.

The problem is posed by actions of the grievant which

occurred subsequent to the discharge. Before discussing

these actions, reference should be made to an aspect of

the record which occupied a good part of the hearing.

It is essential to discuss this part of the record since some

of the post-discharge actions are of a similar character,

= on

and the arbitrator wishes to make clear the basis for his

decision.

During the course of his employment and particularly

the last several years, the grievant has been openly

critical of the company. He has written letters to the

newspapers which were published. He has caused pam-

phlets to be distributed, many of which have to do with

the conditions of the cabs in which the drivers are re-

guired to do their work. Although this conduct was not

specifically made a basis for the discharge, it is clear from

the attitudes of the representatives of the company at the

hearing that they regarded the conduct as impermissible.

Their position is that the conduct was hurtful of the

company and evidenced disloyalty on the part of the

employee.

The right of an employee to be critical of his employer

(with relation to the conditions of his employment) as

part of his constitutional right of free speech has not

been the subject of extension discussion or consideration.

In this case the employer is engaged in public transporta-

tion and is subject to some degree of regulation. It shares

with the drivers of the company the responsibility for the

safety of its passengers. It aiso has the responsibility in

the maintenance of equipment and in other respects for

the safety of its drivers. In matters bearing upon the

safety of the public and employees, wide latitude should

be given employees to express themselves. Despite the

reservations which were evidenced during the hearing by

the company representatives, apparently the company ac-

cepts this right of an employee since no disciplinary action

of any character was taken by the company with relation

to the activities of the grievant in criticizing the company.

Subsequent to the discharge, the grievant involved himself

again in a number of communications. All of these com-

ae Pe Oe ee ee

tom

munications but one fall in the same category as the

predischarge communications. They include a letter dated

May 17, 1966 to Senator Abraham A. Ribicoff (Union Ex.

18) which was widely circulated. In this letter, the griev-

ant refers to his great concern about carbon monoxide

poisoning resulting from the location of the air intake

vents, and claims that many drivers suffer from carbon

monoxide poisoning with residual damage to the brain

and other vital organs.

On July 7, 1966, he wrote to the National Labor Reia-

tions Board charging collusion between the company and

the union, sending copies of the letter to the company

(Co. Ex. 12). On November 2, 1966, a similar letter was

written to the United States Department of Justice, the

Federal Bureau of Investigation and the United States

Department of Labor (Co. Ex. 14), and to the four

Chicago newspapers, suggesting that proof of collusion

between certain officers of the union and the company

would be revealed at the arbitration hearing scheduled for

November 28, 1966. On July 12, he wrote a letter to the

union president, with copies to the company, charging that

because the Commissioner had not made a visual exam-

ination of the cab bodies, fenders and tires “the health

and lives of thousands of DUOC members are being need-

lessly endangered by high concentrations of carbon mon-

oxide and other noxious gases” and complaining also

about the location of fresh air vents and the sub-standard

maintenance of the cabs (Co. Ex. 31).

These communications fall within two categories, one

relating to the grievant’s conviction concerning the

hazards growing out of the location of the fresh air

intake vents, the second having to do with his apparent

conviction that the company and the union were in col-

lusion with each other. The grievant testified at length

as to information which he obtained from published mate-

rials with relation to the possibilities of carbon monoxide

poisoning. It is unnecessary to this decision for the ar-

bitrator to make a determination on this issue. There

is in the record enough to show there is a justifiable basis

for the grievant's belief. This is not to say that the

arbitrator shares the grievant’s belief. The grievant, on

the basis of what he has read, believed that what he was

saying was the truth. The communications concerning

claimed collusion between the union and the company are

well within the right of the grievant. It should be said,

however, in passing thai although the grievant had writ-

ten to newspapers that proof of such collusion might be

forthcoming at the arbitration hearing, no evidence was

offered by him or anyone else at the hearing to sustain

this claim.

There is one communication which is crucial to the

opinion of the arbitrator. This is a letter written on

May 19, 1966 to Marsh & McLennan, the insurance

carriers for the company (Union Ex. 17). In this letter

thé grievant lists the location of ten of the garage facil-

ities occupied by the company. He states that these

facilities are being operated outside the law and that

“fire—health—electrical—boiler and other accident haz-

ards are being brazenly ignored.” Copies of this letter

were sent by him to the company and to the union.

During his testimony, the grievant was not able to say

that he had been in the garages listed in this letter within

six months of the time he had written it. He did assert

that he had stopped at all but three of the garages iisted

during the course of kis employment and that these

garages did not have facilities for exhausting paint spray

fumes. He also admitted that he had. not inspected the

boilers prior to writing the letter. His justification for

ay ‘aii Cane. eee: S

writing the letter was that he felt it was his duty as a

citizen and that he would have written the letter if he

had not been discharged. This letter undoubtedly falls

within the ambit of free speech of the grievant, but it

is another aspect of the letter which concerns the arbi-

trator.

The letter was sent to the insurance carrier for the

company with whom the grievant had no relations. It

could only have on purpose and that would -e of causing

the insurance carrier to do something about the condi-

tions described in the letter. The insurance carrier had

a contractual relationship with the company and because

of the risks which it was carrying for the company would

clearly be concerned with charges such as that made by

the grievant.

The letter reveals a motivation by the grievant which,

in the opinion of the arbitrator, disqualifies the grievant

as an employee. It is a highly reckless letter. It includes

charges about garages which admittedly he never visited.

It included specific charges about boilers he had never

inspected. It makes charges which relate to current con-

ditions in the garages although it is fairly clear from

the record that grievant had never been in most of the

garages listed within six months prior to the writing

cf the letter. It is an intervention and interference with

the relational interest of the company in a most irre-

sponsible manner. What the letter betrays is an innate

hostility by the grievant against the company. It casts

doubt on -the good faith of many of the other commu-

nications which are in the record.

His conduct casts substantial doubt on the good faith

desire of the grievant to become an employee of the

company. What is it the grievant wants? Why should

~~ 24 —

he go back em a jib im which he is compelled to operate

equipment wihich lhe regards as hazardous to his health

gi and his passengers? Why should he work for a company.

which he elaine is im violation of the law in the main-

tenance of its fauilities and equipment?

One gains the impression that his sole purpose in

seeking reinstiatwment is so that he can continue the

campaigm agaimst the company as an employee of the

company. Butt alll @f this is speculation with relation to the

grievant’s motivation. The arbitrator must be guided by

the objective flats and these facts establish that the

grievant has a strongly entrenched antagonism to the

company, s® deep that he was willing to make shotgun

charges agaimst the company without adequate founda-

tion.

The issue as t the grievant’s reinstatement, put in

the simplest temms, is whether an employee should be

reinstated t@ a jb and restored to the relationship of

an employee @f the company when he has demonstrated

a deep animosity against the employer and a hostility

so great as tm result in the making of unfounded and

perhaps hurtffnl charges against the employer.

The undexiyime question is what standard of conduct

should am employee be held to with respect to statements

or utteramces about his employer made publicly or made

to others tham his employer or other employees. The

answer to this question will turn in part on the degree

of loyalty which an employer may reasonably expect

from am employer. Admittedly this test is difficult to

define. Tihe use of the word “loyalty,” as such, can be

treacherous as we know from the misuse of the term

during the Me(€arthy period. What can be said here,

unfortunately, must be expressed in negative terms. The

Ace Dia ad

_ ‘a

arbitrator believes it will be generally agreed that an

employee may not make irresponsible and unfounded state-

ments to persons or firms with whom the employer has

relational interests which may be hurtful to an employer.

The least that it can say is that if the employer-employee

relationship does not require some degree of loyalty cz

the part of the employee, it cannot tolerate intense and

open hostile opposition.

There must be a balancing of interest of both the

employer and the employees. The opinion of the arbitrator

is that it would be unjust to saddle the company with

an employee who has privately and publicly, in a notori-

ous way, made clear his disaffection and animosity for

the company.

The union places great emphasis on the grievant’s role

as a necessary voice of dissent for the union members.

The reinstatement of the grievant is not essential to

protect the right of the employees to protest against

unsafe working conditions, individually or through the

union. The employees have a right to dissent and to

express their dissent and to let the employer know when

conditions are unsafe. The union has a similar right.

There should be no conflict between these essential rights

and the right of the company not to be required to rein-

state an employee who so patently evidences his anger

and his great dislike for the company. The grievant

is free to continue his campaign against the company.

He does not have the right to a job so that he can

mount this ¢ampaign more effectively. No historic rights

are infringed by a denial to reinstate the grievant. Nor

does justice require reinstatement. On the contrary, it is

because of the arbitrator’s conviction that reinstatement

would be unjust, that reinstatement is denied.

—_—

Award

The grievance is sustained in part and denied in part.

The company will reimburse the grievant for all time

jost from the date of his discharge to the date of this

award including vacation and holiday pay. The employee’s

request for reinstatement is denied.

The arbitrator reserves jurisdiction for a period of

thirty days for the sole purpose of resolving any dispute

concerning the computation of back pay for the grievant.

/s/ Alex Elson

Alex Elson, Arbitrator

Entered at Chicago, Illinois

this 28th day of February, 1967.

Supplemental Decision and Award of Arbitrator:

AMERICAN ARBRITRATION ASSOCIATION, ADMINISTRATOR

* * (Caption—No. 51 30 0202 66) * *

Supplemental Decision And

Award Of Arbitrator

The award of the arbitrator dated February 28, 1967

reserved jurisdiction for a period of thirty days for the

sole purpose of resoiving any dispute concerning the

computation of compensation to be paid to the grievant

under the terms of the award. On March 29, 1967 the

arbitrator was informed that the parties were in dispute

concerning such compensation. In view of the necessity

of holding a hearing in the matter, an order was entered

on that date by the arbitrator extending the period within

which the arbitrator reserved jurisdiction to resolve the

issue of backpay for a period of sixty days. The hearing

was held on two days—February 28, 1967 and May 24,

po

1967. On May 25, 1967 the arbitrator entered an order

reserving jurisdiction to resolve the issue of backpay

for an additional period of thirty days from that date

to provide time for the arbitrator to consider the record

and issue his supplemental award. On the record the

parties agreed to the extension of time. The company,

however, made clear that in doing so it did not waive

any claims it might have as to the award of February

28, 1967. Copies of the several extension orders are at-

tached hereto. |

The parties were represented by their counsel at both

hearings. The testimony of the grievant and Mr. Arthur

Billups, chief steward for the union was offered on behalf

of the union. Mr. Alfred H. Rhodes testified for the com-

pany. A stenographer’s transcript was supplied to the

arbritrator by the parties.

The award of February 28, 1967 directed the company

to “reimburse the grievant for all time lost irom the

date of his discharge to the date of this award including

vacation and holiday pay.” The contract makes no pro-

vision for holiday pay. Accordingly, the issues before

the arbitrator are the computation of wages due to lost

time and whether the grievant is qualified to receive

vacation pay under the terms of the agreement. These

will be taken up in turn.

1. Wages for Time Lost

The employee was out of work for a period of forty-

two weeks from the date of this discharge to the date

of the award. During this period the grievant had no

earnings from outside employment. He attempted to

secure other employment without success. He did receive

unemployment compensation for approximately ten weeks

during the period but no provision relative to the benefits

ee

received are necessary in this supplémenta) award. Un-

der the Illinois Unemployment Compensation Act (Ill.

Rev. Stat., Ch. 48, Para. 490) the grievant is obliged to

reimburse the State for benefits received.

The grievant claims wages due to time lost to him

should be computed on the basis of $17.50 a day. This

claim is based on Article III, Section 2 of the parties’

collective agreement which reads as follows:

“Section 2—The company will guarantee to furnish

a cab to each driver for operation for his regular

shift, and also guarantee him against breakdown.

If the driver appears for work at his regular ap-

pointed time and no operable cab is available for

his shift and the Company is unable to supply such

operable cab for the remainder of the day, the Com-

pany will pay such driver, as compensation for that

day’s work the sum of Seventeen Dollars and Fifty

Cents ($17.50). If, however, the Company assigns

a eab to the driver sometime during that day, then

the company will pay the driver for each hour that

he was compelled to wait the sum of One Dollar and

Seventy-five Cents (1.75). In the event the driver

has a breakdown on the road, through no fault of his

own, and the Company is unable to furnish the

driver with another operable cab, the Company will

pay the driver as compensation at One Dollar and

Seventy-five Cents (1.75) per hour on an hourly

basis for the balance of his shift or until such time

as another operable cab can be furnished him.”

The foregoing provision is basically a call-in pay pro-

vision which guarantees to an employee minimum com-

pensation if he reports to work and the company is

unable to supply him with an operable cab. There is no /

language in the provision to justify the inference that

the standard therein established of $17.50 per day should

apply in the case of an employee to whom an award is

made for unjust discharge. Moreover, the call-in pay

provision requ.zes the employee to be at his place of

employment ready for work. Call-in pay compensates

him not only for failure to offer him work but for the

expense and time required to go to and from the com-

pany’s premises. The use *f the call-in pay provision

would eliminate ali differences between cab drivers in

terms of their earning capacity. All cab drivers would

be treated equally even though some by reason of their

knowledge and diligence are able regularly to earn more

commissions than their fellow employees. Applying the

arbitrary amount fixed for call-in pay would be unjust

for a high earner, and might provide a small windfall

for the low earner. |

The usual and customary standard for determining com-

pensation for time lost is that of past average earnings

of an employee for a reasonable period of time. This

standard has particular application to the occupation of

a cab driver paid on a commission basis. This is the stand-

ard which the arbitrator adopis.

The record establishes that the average weekly earning

of the grievant for the year prior to his anniversary date

of March 9, 1966 was $60.93 per week. It is an undisputed

fact that cab drivers derive their earnings not only from

the commissions paid them by the company but by tips or

gratuities paid to them by customers. No record was kept

by the company of tips earned by drivers until January

1966. The grievant offered no evidence to establish what

his earnings were from tips for the period in question for

the calendar year 1965 although he filed a federal income

= =

tax return for that year and presumably the return re-

flected his tips. The only evidence of tips in the record

is that supplied by the grievant to the company for the

first three months of 1966. The average weekly tips

established by this record is $11.30. In the absence of any

other evidence of tips received by the grievant, the arbi-

trator is left with no alternative except to use the evidence

supplied to him by the company. On this basis, if the

average of $11.30 is added to the average weekly earnings

of $60.93, his loss of compensation on a weekly basis is

$72.23 and for the forty-two weeks in questicn totals

$3,033.66.

2. Vacation Pay

Article X sets forth the provisions for the collective

agreement with reference to vacations. It reads as fol-

LOWS:

“Article X Vacations

“Section 1—Every chauffeur employed by the Com-

pany who has been employed by the Cempany continu-

ously for a period of one (1) year or more shall re-

ceive one (1) week’s vacation of six (6) days during

each year with pay, and every chauffeur employed

by the Company continuously for three (3) years or

more shall receive two (2) weeks’ vacation of twelve

(12) days during each year with pay, and every

chauffeur employed by the Company continuously for

twelve (12) years or more shall receive three (3)

weeks’ vacation of eighteen (18) days during each

year with pay, provided in each instance that he has

during the preceding twelve (12) months worked a

total of two hundred twenty-five (225) days or more.

Loss of working days due to verified illness shali be

treated as days worked for this purpose. The eligi-

bility of said chauffeur for a vacation shall be deter-

mined on the anniversary date of his employment

oniiies

of each year, and the pay during each week of sach

vacation shall be equal to the average weekly pay

received by such chauffeur during the twelve (12)

months immediately preceding such anniversary date,

provided, however, that all such vacations shall be

taken within twelve (12) months after the anniver-

sary date upon which such chauffeur becomes eligible

for a vacation and the time of such vacation shall

be arranged by the Company in such manner as to

permit continuous and uuiaterrupted service to the

public. Every chauffeur shall have the right to waive

his right to a vacation and continue to work without

waiving his right to receive the vacation pay pro-

vided in this paragraph.

“Section 2—Such vacation pay shall be due every

chauffeur who has conformed with the above, even

though he may elect to resign or is discharged. Such

vacation pay shall be due a chauffeur who has con-

formed with the above who has been incapacitated

or who has died.”

As will be seen from the foregoir g language an employee

to qualify to receive a vacation must establish that during

the twelve months preceding his anniversary date he

worked a total of 225 days or more. In determining days

worked the contract provides, “Loss of working da‘ya due

to verified illness shall be treated as days worked for this

purpose.”

The record shows that the grievant worked a total of

224 days during the twelve-month period in question. In

order to qualify for a vacation the burden was upon him

to establish at least one day of verified illness. The arbi-

trator interprets the words “verified illness” to mean that

some type of information be supplied to the company

by the employee which would support his claim of illness.

Without attempting to list all types of verification, the

fe Oe a ee

—32-—

obvious forms of certificates would be a coctor’s certificate,

hospital record or some similar type of documentation.

The grievant testified generally that he had some thirty

days of illness during the period in question but was un-

able to establish any period in which he had doctor’s care

during the year preceding his anniversary date. Grievant

made a reference to one illness for which he was attended

by a physician but was not sure whether it was the year

1964 or 1965. He makes no claim that he supplied a doc-

tor’s certificate or any other evidence if illness to the com-

pary for any of the days of illness during the twelve month

period in question. The hearings with relation to this

issue have extended over two days with at least a month

in between. The grievant has had ample opportunity to

obtain information with relation to his claimed illness.

In the absence of any proof of a “verified illness” the

arbitrator has no alternative under the contract except

to deny the claim for vacation pay. The arbitrator recog-

nizes that this may be a harsh result in view of the fact

that the grievant admittedly worked 224 days out of the

year in question and was missing only one day. But the

arbitrator has fo jurisdiction to change the contract of

the parties and the contract clearly and unequivocally

requires the showing of verified illness. This showing

was not satisfied in this case and accordingly the supple-

mental award of the arbitrator will not include any com-

pensation for vacation for the year in question.

=

Supplemental Award

The award of February 28, 1967 ordered payment for

time lost and vacation pay, the amount therev’ to be

agreed upon hy the parties, the award reserving jurisdic-

tion of the arbitrator to resolve any dispute relating

thereto. The parties having been unable to agree on the

amount to be paid grievant for time lost and vacation

pay, submitted the matter to the arbitrator. On the basis

of the reccrd made before him and the preceding opinion,

the arbitrator makes this supplemental award to the award

of February 28, 1967 as follows:

The company shall pay the grievant the sum om $3,033.66

representing compensation due him for all time lost from

the date of his discharge to the date of this award. The

claim for vacation pay is denied.

/s/ Alex Elson

Alex Elson, Arbitrator

Entered at Chicago, Illinois

this 7th day of June, 1967.

AMERICAN ARBITRATION ASSOCIATION, ADMINISTRATOR

* * (Caption—No. 51 30 0202 66) * *

Extension of Period Within Which Arbitrator Reserves

Jurisdiction to Resolve Issue of Backpay.

In the award of the arbitrator dated February 28,

1967 the arbitrator reserved jurisdiction for a period of

thirty days for the sole purpose of resolving any dispute

concerning the computation of backpay for the grievant.

The arbitrator has been informed by letter from counsel

for the grievant dated March 28, 1967 that the dispute

eer eee Gee

—

concerning the computation of backpay for the grievant

has not as yet been resolved and requesting that the

arbitrator extend the period for resolving this dispute.

Inasmuch as the dispute concerning the computation

of backpay for the grievant has not as yet been resolved,

the arbitrator extends the period within which he will

exercise jurisdiction for the sole purpose of resolving any

dispute concerning the computation of backpay for the

grievant for a period of sixty days from the date hereof.

/s/ Alex Elson

Alex Elson, Arbitrator

Entered at Chicago, Illinois

this 29th day of March, 1967.

AMERICAN ARBITRATIOX ASSOCIATION, ADMINISTRATOR

* ° (Caption—No. 51 30 0202 66) * *

Additional Extension of Period of Time Within

Which Arbitrator Reserves Jurisdiction to

Resolve Issue of Backpay.

In the award of the arbitrator dated February 28, 1967,

the arbitrator reserved jurisdiction for a period of thirty

days for the sole purpose of resolving any dispute con-

cerning the computation of backpay for the grievant.

On March 29, 1967, it appearing that the dispute con-

cerning the computation of backpay had not as yet been

resolved, the arbitrator entered an order extending the

period within which the arbitrator reserved jurisdiction

for a period of sixty days. During the intervening period

several hearings have been held with the parties con-

cerning the computation of backpay and the issue of de-

termining the amount of backpay was submitted by the

parties to the arbitrator on May 24, 1967.

In view of the fact that some time may be necessary for

the arbitrator to prepare a supniemental or amended

award reflecting the matters presented to him, the parties

at the hearing agreed that the time within which the arbi-

trator shall hear and determine the dispnte with relation

to backpay should be further extended for a period of

thirty days.

Accordingly, the arbitrator extends the period [within]

which he will exercise jurisdiction for the sole purpose of

resolving the dispute concerning the computation of back-

pay for an additional period of thirty days from the date

hereof.

/s/ Alex Elson

Alex Elson, Arbitrator

Entered at Chicago, Mlinois

this 25th day of May, 1967.