Burden of Proof in Grievance Arbitration

reliance

on what appears to some as pointlessly technical rules of evidence, useof artificial canons of construction for the interpretation of ambigu-ous contracts, and so on. All these things, say the critics, impede thedispute settling function of the arbitration process, rather than aid it,and, what is worse, contribute to unavoidable tension by introductionof frustrating and extraneous controversies, which rarely, if ever,assist the arbitrator or the parties in the resolution of the underlyingdispute.

One of the "technicalities" viewed with great distrust by propo-nents of the above point of view is the rule of burden of proof, which,they say, has no place in labor arbitration. It is the purpose of thispaper to examine this point of view; to review the published cases, todetermine to what extent arbitrators, right or wrong, have made use ofthis rule in the decision of disputes; and to appraise the validity of theapplication of this rule and the manner of application in individualcases.1a

It must be kept in mind from the outset, however, in making orevaluating a study of this sort, that the process of labor arbitrationis so varied in individual instances that attempts at generalization ofmatters of practice and procedure, or the distillation of "rules" from*A.B., 1953, LL.B. 1955, Marquette University; LL.M., 1959, University of

Michigan; Editor-in-Chief, Marquette Law Review, 1954-1955; Attorney,Allis-Chalmers Mfg. Co., 1956--

1 For examples of this kind of criticism, see Stein, Arbitration and IndustrialJurisprudence, 81 Monthly Labor Review 866 (1958) ; and Editorial, CreepingLegalinip in Labor Arbitration, 13 Arb. J. (n.s.) 129 (1958).

la The problems to be discussed in this paper are principally procedural in na-ture, rather than substantive. To the extent, however, that variations in ap-proach to substantive issues result in differences in procedural handling, theywill be taken account of; but it is beyond the scope of this paper to evaluatethe validity of various approaches to substantive matters of contract inter-pretation or application. Where there are conflicting points of view on sub-stantive issues, they will be stated only with a view to determining theireffect upon the procedural aspects of the type of case involved.

MARQUETTE LAW REVIEW[l

the published cases are unrewarding at best, and usually frustratingand divisive in addition. This is true for several interrelated reasons.Some of them follow:

First: There is no objective standard against which matters ofarbitration practice can be measured. True, the laws of the variousstates provide some regulation, but this is restricted principally to sub-stantive matters, such as enforcement of agreements to arbitrate andthe ensuing awards. Little attention is given to matters of procedurebefore the arbitrator, and that little concerns itself with situations offairly grievous misconduct of the arbitrator, rather than with compara-tively minor points of procedure. As a result, in those very few casesthe courts have jurisdiction to review, if there is a question of proce-dure, it will be something like, "Did the arbitrator unlawfully refuseto hear relevant evidence ?" rather than, "Did the arbitrator err in rul-ing that the burden of proof rested on the employer?" or "Did thearbitrator err in ruling that the employer was obliged to open thecase ?" In the latter instances, the court simply has no power to review,since nothing in the arbitration statutes or in the common law pre-scribes any standards for the arbitrator to follow.

Second: Since there is no legal standard imposed on the proceeding,the parties are free to devise any procedural scheme they wish, solong, presumably, as it is not grossly unfair to one or the other. Forexample, it is not unheard of for parties to submit a dispute over thetelephone, the facts being stipulated and the conversations being limitedto argument.2 Another example of a situation in which the partieshave worked out a somewhat unusual procedure between themselvesis the one currently in effect between Chrysler Corporation andthe UAW. Disputes between these parties are decided by the Um-pire based on written statements of witnesses and the argumentsof the parties. The Umpire never sees a witness nor does he everview a shop operation.3 In other instances, an arbitrator may find,depending on the nature of the relations between the parties, that hehas been called in as a sort of consultant and that he is expected to ren-der his decision after a round table discussion of the problem, ratherthan a formal hearing. In short, the rules of the game are going tovary a great deal, depending on the expressed, or, more often, implieddesires of the parties themselves.

Third: In the majority of cases, however, the parties are likely tocome to the hearing without a clear idea of what procedure they wantfollowed, or will come in disagreement as to what it should be. The

2 Cf., 2 Arb. Magazine (May-June, 1944) p. 27.3This unique procedure is fully described by Wolff, Crane and Cole, The

Chrysler-UAW Umpire System, The Arbitrator and the Parties, pp. 111-141(BNA: 1958).

[Vol. 43

GRIEVANCE ARBITRATION

arbitrator, in such cases, bears the responsibility of clearing the way ofthe procedural roadblock and getting on with the case. He may beobliged to direct one party or the other to open the case; to sustain oroverrule an objection to certain evidence (being ever conscious of hislegal obligation to hear all relevant evidence); to direct a party toprove contested assertions by witnesses rather than through unsup-ported statements of its representative; or to accept or reject an ex-parte affidavit in lieu of oral testimony. He may be required to resolvea myriad of different kinds of procedural issues before he can reachthe principal dispute in the case. As pointed out above, there are nolegal standards for deciding the great bulk of these problems. As aresult, the arbitrator is left to his own devices in composing the diffi-culty before him. He may decide the issue based solely on what seemsfair at the time; he may decide the issue based on what seems mostexpedient; he may even decide the issue based on which party seemsleast likely to be offended by an adverse ruling. In any event, it seemsclear that there will almost inevitably be divergent handling of thesame kind of problem by different arbitrators in different situations-or even by the same arbitrator with different parties. When to this isadded the fact that many arbitrators are lawyers, and take great com-fort in handling such disputes in accordance with analogous rules ofcivil or criminal procedure, and the fact that many arbitrators are notlawyers and are not at all impressed with the analogy (together withthe fact that some lawyer-arbitrators abhor legal terminology andlegalistic approaches to arbitration, and some non-lawyer-arbitratorsdelight in it), the picture becomes even more cloudy. All of this isstated not in criticism of the seeming many-headedness of the arbitra-tion profession, but in support of the proposition that a study of arbi-tration procedure is fraught with difficulties and dead-end alleys.

Numerous other difficulties could be demonstrated; but it seemsfairly apparent that discussion of arbitration procedure in generalterms must rest on the faulty assumption that there is, or should be,uniformity and regularity in arbitration practice. This is patently notso. It seems quite inappropriate to attempt to discuss the telephonearbitration and the consultation arbitration mentioned above and othersituations equally unique in terms of burden of proof, rules of evidenceand the like. On the other hand, in perhaps the great majority of cases,the parties expect the arbitrator to act in a judicial manner. He iscalled in as a quasi-judge; he sits in a central position; he listens toopening statements and closing arguments; he hears the examinationand cross-examination of witnesses and participates therein himself;he is confronted with objections and motions; he may have the benefitof a transcript made by a court reporter; he may, perhaps, receivepost hearing briefs. He decides the issue, usually a legal one of whether

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MARQUETTE LAW REVIEW

there has been a violation of the collective bargaining agreement, basedon the evidence before him.

It is with this latter kind of more formalized arbitration that thispaper intends to deal, in the belief that the similarities of the proceed-ing to trials by the court witihout a jury, and hearings before adminis-trative tribunals, are sufficient to warrant the use of some of the tech-niques of these latter, developed through hundreds of years of experi-ence, at least to the extent that their application is profitable. Whatwill be said in this paper is not intended to relate to situations in whichthe agreement or practice or understanding of the parties compel dif-ferent conclusions.

Much emphasis will be placed, in this paper, on similarities withand differences from court procedures in the handling of specificproblems. This will be done, not in advocacy of wholesale applicationof court procedures to the arbitration forum, but in the belief thatthere is much to be learned from the techniques of these judicialbodies, much more, in fact, than should be discarded because of "thelaw's delays" and useless technicality. Furthermore, there seems to berecognition by many of the leaders in the arbitration profession thatsuch is the case; indeed, many, many reported cases show a consciousand unequivocal reliance on analogous rules of judicial procedure.Those cases concerned with this problem as it relates to the "rule" ofburden of proof will be discussed in this paper.

IIWHAT Is BURDEN OF PROOF?

Before we can make an adequate study of the use and utility ofburden of proof in labor arbitration, we must have a fairly goodunderstanding of what we are talking about. Since the courts consti-tute the forum in which the doctrine was formalized and is now mostfrequently used, they are without doubt the most logical source to con-sult in order to determine what burden of proof is. After determiningwhat the courts and legal writers think burden of proof is and how itworks, we will be in a better position to study the use of the rule andits validity in the arbitral forum.

The term "burden of proof" is used in at least two senses in courtproceedings. Strictly, it is the necessity or duty of affirmatively prov-ing a fact or facts in dispute on an issue raised between the parties ina cause. 4 Differently phrased, it is the "duty resting upon one partyor the other . . . to establish by a preponderance of the evidence aproposition essential to the maintenance of the action." 5 However, theterm is frequently used to denote the "necessity which rests upon a

4 Willett v. Rich, 142 Mass. 356, 7 N.E. 776 (1886).5 Kohlsaat v. Parkersburg and Marietta Sand Co., 266 Fed. 283, 284 (4th Cir.

1920). It should be noted that the rule relates only to questions of fact, notto questions of law. Wieger v. Mutual Life Ins. Co., 205 Wis. 95, 236 N.W.

[ Vol. 43


party at any particular time during a tHal to create a prima facie casein his own favor, or overthrow one created against him." 6 This latterduty is more correctly referred to as the "burden of the evidence", the"burden of proceeding", or the "burden of going forward with theevidence."

'7

In the courts, the fundamental principle, subject, of course, to ex-ceptions, is that the burden of proof in any cause rests upon the partywho, as determined by the pleadings or the nature of the case, assertsthe affirmative of an issue; and it remains with that party until thetermination of the action." More particularly, it rests upon the partywho will be defeated as to either a particular issue or the entire caseif no evidence relating thereto is adduced by either sidef This is to bedistinguished from the "burden of evidence" or the "burden of goingforward with the evidence" which may shift from side to side duringthe progress of the trial.'" The location of burden of proof in thelatter sense is controlled by the logical necessities of making proof,the burden being always on that party against whom the decision wouldbe rendered if no further evidence were offered."

It is considered by the courts that the rules concerning burden ofproof are essential to the proper administration of justice.' 2, Somecourts regard them as involving substantial rights of a party, thereforeto be carefully guarded and rigidly enforced.'"

In the discussion of arbitration cases in this paper, an attempt willbe made, where possible, to distinguish between burden of proof whenused in the strict sense and "burden of proof" when used with obviousreference to the "burden of going forward with the evidence," in thesense above described.

IIIBURDEN OF PROOF IN GRIEVANcE ARBITRATION

At first glance, a person unfamiliar with the jargon and tradition of

534 (1931). There appears to be some confusion on this point in the re-ported arbitration cases, however. e.g., in Bethlehem Steel Co., 20 Lab. Arb.

87 (1953), the arbitrator states that there is "a heavy burden of proof andpersuasion' upon a party claiming that a prior decision is erroneous in princi-ple and should not be followed.

6 Mobly v. Lyon, 134 Ga. 125, 128, 67 S.E. 668 (1910).7 For an example of the difference in the effect of burden of proof as dis-

tinguished from "burden of proceeding with the evidence" or "burden ofevidence", see Rutland Ry., Light & Power Co. v. Williams, 90 Vt. 276, 98Atl. 85 (1915).

s Lilienthal's Tobacco v. United States, 97 U.S. 237 (1877) ; Kohlsaat v. Parkers-burg and Marietta Sand Co., suora note 5.

9 Wilson v. California Central R.R. Co., 94 Calif., 166, 172, 173, 29 Pac. 861 (1892),10 Scheinman v. Chalmers, 33 F. 2d 902 (3rd Cir. 1929).11 Donovan v. St. Joseph's Home, 295 Ill. 125, 129 N.E. 1 (1920).12 Clapper v. Lakin, 343 Mo. 710, 723, 123 S.W. 2d 27 (1938); Miller v. Kruggel,

165 Kan. 435, 195 P. 2d 597 (1948).13 Clapper v. Lakin, supra note 12; Hunt v. Eure, 189 N.C. 482, 493, 127 S.E.

593 (1925) ; Standard Accident Ins. Co. v. Cloutier, 92 N.H. 449, 451, 32 A. 2d684 (1943).

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labor arbitration, though trained in law, would be likely to assume thatthe judicially contrived rule of burden of proof would be the mostlikely legal rule to be applied without hesitation by arbitral tribunals.After all, he would say, we have here an adversary proceeding in whichopposing parties are frequently in dispute concerning factual issues.Obviously, he would continue, a party to such a controversy musteither produce convincing evidence of any affirmative assertions essen-tial to his case, or have his claim or defense rejected. In other words,a party should be expected to prove his case if the facts of the matterare seriously disputed. This is no more than a statement of the rule ofburden of proof. However, some writers, even experienced arbitra-tors emphasizing the informality of this consensual forum, deny thatburden of proof has a place in grievance arbitration. For example,Jules Justin has stated:

Unlike a court of law, there is no burden upon the claimingparty to establish in the first instance a prima facie case. Like-wise, except in those limited instances in which observance ofcourt or legal rules is required by statute, neither party has theformal 'burden of proof' such as prevails in a law suit.

14

Another arbitrator, Marion Beatty, has remarked, "This rule [burdenof proof) is not recognized as such in arbitration. . . .Ordinarily toinsist on the burden of proof rule leaves the impression that techni-calities are being brought into an arbitration case where they do notbelong."'15 But Mr. Beatty qualifies his statement by acknowledging that

Of course somebody must prove something to the satisfaction ofthe arbitrator or he will have no alternative but to dismiss thecomplaint or grievance and leave the parties where he foundthem. It is more appropriate to say that both parties to an arbi-tration run the risk of non-persuasion. 6

It would seem from this qualification that Mr. Beatty recognizes bur-den of proof in the strict sense, since he admits that the arbitrator has"no alternative but to dismiss the complaint" if proof thereof is lack-ing.

The problem appears in sharp outline in a case decided, appropri-ately enough, by Mr. Justin.1 7 In this case, the issue was whether theemployer had violated the collective agreement by hiring performerswithout execution of individual employment contracts in certain re-quired form. The union, however, even after prodding by the arbitra-tor and challenge by the employer to show even one instance of con-tract violation, refused to offer any evidence. The basis for this refusal

14 Justin, Arbitration, Proving Your Case, 10 Lab. Arb. 955, 963 (1948). Thearticle originally appeared in Personnel Magazine.

15 Beatty, Labor-Management Arbitration Manual, p. 55 (Eppler & Son: 1956).16 Ibid.7 Justin, I. Hirst Enterprises, Inc., 24 Lab. Arb. 44 (1954).

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was the union's belief that the company was obliged in the first in-stance to show that it had fully complied with the agreement. Mr.Justin rejected this argument, saying,

The Arbitrator finds no basis under the Contract or in the arbi-tration process to support this position. The mere assertion of aclaim, by one party against the other under a collective bargain-ing contract, does not prove or establish the validity of thatclaim. Nor does a claim by one party, alleging that the otherparty violated a contractual provision, unsupported by anyproof, compel the other party to disprove it.'

This appears to be a good statement of the rule of burden of proof inthe strict sense. Mr. Justin, however, denies any intention of relyingon this concept:

Unless the contract provides otherwise, the strict rules of legalprocedure do not apply in arbitration-neither party has the'burden', as such, of proving or disproving an alleged claim; of'going forward' or of making out a prima facie case. Bothparties come to arbitration as equals. Each maintains its equalstatus before the Arbitrator. 9

But this statement too must be qualified: "However, the party whoclaims that the contract has been violated must be prepared to offer tothe Arbitrator material and evidentiary facts to support or justify itsclaim." 20

It would seem that this is a problem of semantics. The two arbi-trators whose opinions are outlined above agree that "burden of proof"has no place in grievance arbitration; but both appear to recognize thevalidity of the rule when it is nameless or when it is called somethingelse. What seems apparent here is an understandable reluctance to uselegalistic terminology, without rejection of the underlying legal meth-odology.2'

Most other arbitrators do not share this reluctance. In literallyhundreds of published cases, the rule of burden of proof is explicitlyrecognized 22 and held decisive where the evidence on a point is lackingor unconvincing. Many of these cases will be discussed in this paper.

Is 24 Lab. Arb. at p. 47.19 Ibid.2o Ibid.21 This automatic aversion to legal terminology seems to be particularly prevalent

among union leaders without legal training who are sometimes convincedthat this is just another artificial device to frustrate a just claim. Updegraffand McCoy's observation is very apt: "The atmosphere of ease and informal-ity ... may be quickly shattered by a suggestion by the company's attorneythat since the burden of proof is on the union, it should proceed first withits evidence. This never fails to arouse the union's leaders to suspicious dis-sent, even though they had intended to open the case." Arbitration of LaborDisputes, p. 96 (CCH, 1946). However, these writers state, about burden ofproof, "This is so sensible and logical a principle that no one, understandingit, would disagree." Ibid. at 97.

22For example, in American Optical Co., 4 Lab. Arb. 288 (1946), ArbitratorWhitton states (at p. 292): "First, I find the burden of proof / on the

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IVGENERAL OPERATION OF BURDEN OF PROOF IN GRIEVANCE ARBITRATION

Just as in the court cases discussed above in Section II of thispaper, many arbitrators draw a distinction between burden of proofin the strict sense and the "burden of proceeding with the evidence" ,22a

using just that terminology. And, just as in the court cases, once theparty who bears the burden of proof makes out a "prima facie" case,the burden of proceeding with the evidence is held to shift to the otherparty, who must bear the burden or fail in the case. 22b Where theevidence presented fails to constitute a prima facie case or defense(where, for example, it is considered incredible), the opposite party is

company. The collective bargaining process implies a system of industrialjurisprudence operating within a framework of substantive and proceduralrules of law. . . . The arbitrator is the court of last resort in the processand should follow generally accepted procedural rules in arriving at hisdecision. Of the latter, there are two that are particularly applicable to thiscase, first, one side or the other should have the burden of proof, failing tosustain which he must fail, and secondly, and as a corollary to the first, thecase must be made from the evidence presented, except for matters of com-mon knowledge."

22a In a rather comprehensive discussion of the problem, Arbitrator Babb statesthe following in Allis-Chalmers Mfg. Co., 29 Lab. Arb. 356, 358 (1957):"While the burden of proof remains on the party affirming a fact in supportof his case and does not change in any aspect of the cause, the weight of theevidence shifts from side to side as the hearing proceeds, according to thenature and strength of the proofs offered in support and denial of the mainfact to be established (Central Bridge Corp. v. Baker, 2 Gray 130; Caldwellv. New Jersey Company, 47 N.Y. 282).

"The weivht or preponderance of the evidence is its power to convincethe tribunal of the fact - of the actual truth of the proposition - to beproved, so that it is made to appear more likely in the sense that actual beliefin its truth, derived from the evidence, exists in the mind of the impartialtribunal notwithstanding any doubts that may linger there. It is more thanquantitative probability (Callahan v. Fleischman Company, 262 Mass. 437;Day v. Railroad, 96 Me. 207), and requires at least sufficient evidence to re-move the matter from the realm of conjecture (Creamery Package Company v.Industrial Commission, 211 Wis. 326); the tribunal should not discard posi-tive, credible evidence in favor of an inference drawn from tenuous circum-stances that could at best support only an anaemic suspicion (N.L.R.B. v.Sheboygan Chair Co., 125 F. 2d 636; N.L.R.B. v. Montgomery Ward & Co.,157 F. 2d 486). The function of the Impartial Referee is, therefore, to findthe facts by weighing all the testimony, accepting all or any part of it (ordisbelieving all or any part of it even though it is uncontradicted), andmaking ultimate findings not necessarily consistent with the testimony of anyone witness - although mere disbelief is not evidence, nor does it furnisha basis for a finding the other way."

22b,"While we have held that the burden of first proceeding, and the burden ofproof, are on the Company to prove reasonable cause for the discharge, themaking of a prima facie case discharged the burden of first proceeding andcast upon the union the burden of rebutting that prima facie case. An alibiproved by two witnesses, when the evidence shows that there were otherwitnesses to the alibi whom the union deliberately refrained from calling, doesin my opinion sufficiently rebut that prima facie case." McCoy, Southern BellTelephone & Telegraph Co., 26 Lab. Arb. 742, 746 (1956). See also, McCoy,Southern Bell Telephone & Telegraph Co., 26 Lab. Arb. 186, 187; Ryder, BayCity Shovels, Inc., 20 Lab. Arb. 342, 345 (1953); Abrahams, WestinghouseAir Brake Co., 27 Lab. Arb. 265, 278 (1956) ; and McCoy, General Television& Radio Corp., 2 Lab. Arb. 483 (1942).

[Vol. 43


usually held to have no obligation whatever to proceed with its case.220This latter approach, however, has been criticized as being too legalis-tic. Professor Davey observes in one decision,

This is the second case in which one party has seen fit not topresent a direct case on the basis that the other party has failedto offer anything,to defend against. It would be presumptuousfor the arbitrator to lecture either party on how to present theircases. Nevertheless, I think it is not inappropriate to express myconcern at the use of the technique of denying allegations. Thearbitration process is (or should be) a search for truth. In all butthe most unusual case, the best interests of the arbitration pro-cess will be served by both parties presenting their evidence tothe arbitrator. A party with a strong case has nothing to fearby presenting his witnesses. Straight denial of allegations with-out presentation of witnesses precludes the other party from theprivilege of cross-examination. Often cross-examination helpsto make the factual picture clearer to the arbitrator, as well asproviding a basis for judging credibility of testimony.

22d

While there is much to be said for this point of view (since the pur-pose of arbitration is not only the sustaining or denying of a claim,but the resolution and removal of a dispute), still it should be assumedthat the parties probably know what they are doing. If the defendingparty in good faith feels that the charging party has simply not madeout a case, why should the arbitrator insist upon hearing another ver-sion of the facts? Indeed, even in the cited case, Professor Davey didnot let the union's refusal to present witnesses interfere with his ren-dering a decision in favor of the union on the ground that the com-pany had simply not made out a convincing case.

VEFFECT OF BURDEN OF PROOF ON ORDER OF FIRST PROCEEDING

It is ordinarily assumed in grievance arbitration, as in court cases,that the party who bears the burden of proof is obliged to present hisproofs first.23 This is viewed by some as an advantage. For example,Updegraff and McCoy state:220 McCoy, Southern Bell Telephone & Telegraph Co., 25 Lab. Arb. 270, 274

(1955) ; Cf. Justin, I. Hirst Enterprises, Inc., supra notes 16 and 22.22d Davey, John Deere Waterloo Tractor Works, 20 Lab. Arb. 583, 584-585

(1953).23 See Simkin, Westinghouse Electric Co., 26 Lab. Arb. 836 (1956). At p. 841,

the arbitrator observes, "Without overemphasizing the 'burden of proof'concept, it is obvious that it is incumbent on the Company to support thecharges made against an employee. The Company has recognized this neces-sity and has implemented it at the hearings by proceeding first with its evi-dence ind testimony." See also, .laggs, Lockheed Aircraft Corp., 27 Lab.Arb. 709, 710-711 (1956), where the company was somewhat less accommo-dating. A California arbitrator is of the opinion that this result is required byCalifornia law. Jones, Douglas Aircraft Co. 28 Lab. Arb. 198, 202-203 (1957).In Bethlehem Steel Co., 29 Lab. Arb. 635 (1957), Arbitrator Seward re-quired the employer to proceed first in a discharge case. As noted infra, note25a, under Labor Arbitration Rule 26 of the American Arbitration Associa-tion, the arbitrator may in his discretion vary the order of proof.

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The right to put one's evidence first is generally considered anadvantage, and is given to the party who carries the bnrden ofproof partly to offset the disadvantages inherent in that burden,but partly also because the logical method of proceeding is forthe one who has advanced a grievance to state and prove it."

It is questionable, however, that most parties view the obligation offirst proceeding as an advantage, since most disputes arise over theinsistence of each that the other open the case. 5 This is because of thepractical desire of each party to determine the other party's position,with all its weaknesses, through examination and cross-examination,before being obliged to present his own position. To the arbitratorthis frequently seems to make little difference; but to the party whomust decide which witnesses to use and which points to stress, thematter can sometimes be important indeed.

On the other hand, in some situations, a party may himself be will-ing to proceed out of the usual order, simply as a means of expeditingthe matter. For example, in a case in which the writer represented anemployer, the union representative made an opening statement charg-ing that the employer had misclassified an employee. The union thenrefused, as in Mr. Justin's case, described above, to submit any evi-dence. The basis for this refusal was the belief that the employershould be required to prove his innocence in such cases. The writer,however, in the interest of maintaining a satisfactory relationshipamong the parties and the arbitrator, elected to present, out of theusual order, testimony showing the lack of a contract violation. Insome cases, particularly where the claim is simple and sharply defined,this can and perhaps should be done. From a purely practical point ofview, it will permit disposition of the grievance on the merits, a resultgreatly to be preferred over a procedural ruling which might prove tobe mutually frustrating.

However, whether an employer should proceed first with his de-fense out of the customary order (or the union in a discipline case) isa matter of which probably should be left to the decision of that party.particularly where the precise details of a claim are somewhat vague, orwhere there is doubt that the claim is made in good faith, or where thedefense is complex and technical, it can be unfair to expect the defend-ing party to proceed with evidence first, before some basis for theclaim is shown. In addition, an incautious direction by the arbitratorthat a party proceed out of order can easily lead to lengthy, irrelevantand undesireable "fishing expeditions" by the other party.2

5a

24 Op. cit. supra note 21, at p. 97; see also, Benetar, The Trial of a LaborArbitration, 2 Prac. Law. (No. 6) 34, 38-39 (1956).

25 For example, Lockheed Aircraft Corp., and Douglas Aircraft Co., both supranote 23, and I. Hirst Enterprises, Inc., supra note 17.

25a Justin would apparently agree. See I. Hirst Enterprises, Inc., supra note 17,at 47. Updegraff and McCoy believe that the arbitrator should be the judge

f[Vol. 43


VION WHom DOES THE BURDEN OF PROOF REST?

The "rule" generally recognized by arbitrators seems to be, as incourt cases,26 that the party holding the affirmative of an issue mustproduce evidence sufficient to prove the facts essential to his claim;therefore, the burden of proof is held to rest on the party againstwhom the arbitrator would hold if no evidence were given on eitherside.2 7 Illustratively: the party claiming a controlling past practicemust prove its existence and its binding effect.28 Similarly, where theagreement provides for the continuance of local working conditions,the party asserting the existence of such a condition must sustain hiscontention by proof.29 A party claiming a forfeiture or penalty undera contract has the burden of proving that such was the unmistakeableintention of the parties thereto.'0 A party claiming that a grievance hasbeen settled in an earlier step of the grievance procedure"l or that theother party has agreed to drop the grievance12 must prove that this isthe case. If the union claims that an employee was misclassified, itbears the burden of proof.3 A party claiming that the other has waivedsome right under the contract must prove such claim.34 A partyasserting the modification 5 or cancelation 6 of an agreement, or thatan oral agreement has been made extending the terms of the writtenagreement must bear the burden of proof.'7 Similarly, a party whoclaims an agreement to arbitrate a particular issue must prove the

of who should be required to open. Op. cit. supra note 21 at 97. See alsoLabor Arbitration Rule 26 of the American Abitration Association: "... Theparty initiating the arbitration, or his counsel, shall [first] present his claimand proofs. . . . The arbitrator, in his discretion, may vary this proced-ure ....

26Supra note 8.2' Jones, Douglas Aircraft Co., 28 Lab. Arb. 198, 203 (1957) quoting from

Section 1981 of the California Code of Civil Procedure. The general ruleis acknowledged in Whitton, General Optical Co., 4 Lab. Arb. 288, 292 (1946) ;Platt, Central Boiler & Mfg. Co., 11 Lab. Arb. 354, 357 (1948) ; Levy, MadisonInstitute, 18 Lab. Arb. 78, 80 (1952) ; and Duff, Pittsburgh Commercial HeatTreating Co., 24 Lab. Arb. 715, 717 (1955). See also, Cole, Flintkote Co.,3 Lab. Arb. 723, 724 (1946).

28 Kerr, Waterfront Employers, 6 Lab. Arb. 565 (1947) ; Updegraff, Sioux CityBattery Co., 20 Lab. Arb. 243 (1953) ; Loucks, York Bus. Co., 24 Lab. Arb.81 (1955); Blumer, Carnegie-Illinois Steel Co., 4 Lab. Arb. 9 (1945);Dworkin, Robbins & Myers, Inc., 22 Lab. Arb. 875 (1954) ; Reynard, Texas-U.S. Chemical Co., 27 Lab. Arb. 793 (1956); Hilpert, St. Louis County WaterCo., 13 Lab. Arb. 25 (1949).

29Blair, Youngstown Sheet & Tube Co., 14 Lab. Arb. 645 (1950): Killings-worth, Selekman and Shipman, Bethlehem Steel Co., 14 Lab. Arb. 282, (1950).

3o Cheney, M&ode O'Day Corp., 1 Lab. Arb. 490 (1946).31 Killingsworth, Bethlehem Steel Co., 13 Lab. Arb. 361 (1949)."2Conn. State Board, Flexible Barriers, Inc., 22 Lab. Arb. 106 (1954)."3 Komaroff, North American Aviation, Inc., 22 Lab. Arb. 699 (1954).'3 Cornsweet, Mosaic Tile Co., 13 Lab. Arb. 949 (1950) ; Wyckoff, Westinghouse

Electric Corp., 12 Lab. Arb. 462 (1949).'5 Douglas, Merrill-Stevens Dry Dock & Repair Co., 10 Lab. Arb. 562 (1948).36 Keough, National Tube Co., 9 Lab. Arb. 605 (1947).'7 Pollard, Owl Drug Co., 10 Lab. Arb. 498 (1948).

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existence of the agreement.3 8 And if an employer claims that an em-ployee was not discharged, but rather quit, he has the burden of prov-ing that point.

39

Where the contract provides a certain rule, but states that the ruleis not binding in certain enumerated instances, the burden of provingthat the case falls within the exception falls on the party asserting thatsuch is the case. 40 Thus, where a contract provided for the continu-ance of local working conditions except where a change was justified,the burden of proving justification for a change was held to be on theemployer.41 Similarly, where the contract provided pay for grievancetime, it has been held that the burden was on the employer to justify arefusal to make payment.4 2 In such a case, it is assumed that, in theabsence of evidence to the contrary, the employee or union representa-tive was engaged in activity compensable under the labor agreement.

4 3

And where the contract provided that the employer was not required tofollow seniority in case of layoff where the retention of certain em-ployees was necessary "under the special circumstances then existing,"it was held that the employer had the burden of demonstrating theexistence of such circumstances. 44 However, in another case, wherethe contract limited backpay to the date of filing the grievance unlessthe circumstances were such as to make it impossible for the employeeto know that he had a basis for a claim prior to that date, the arbitratorheld that the employer had the burden of proving that the employee38 Cole, Flintkote Co., 3 Lab. Arb. 723 (1946).39 Platt, Central Boiler & Mfg. Co., 11 Lab. Arb. 354 (1948). Other instances of

the burden of proof being imposed upon the party asserting the affirmativeare the following: Rosenfarb, Kohler & Campbell, Inc., 18 Lab. Arb. 184(1952) (". . . the burden is on the person dealing with the agent to showthat the agent has the real or apparent authority which he assumes to exer-cise." 18 Lab. Arb. at p. 186); Spaulding, Consolidated Steel Corp., 11 Lab.Arb. 891 (1948) and Davey, Rath Packing Co., 24 Lab. Arb. 444 (1955) (Theburden of proving hiring discrimination against Negroes rests with theunion); Gilden, Corn Products Refining Co., 14 Lab. Arb. 620 (1950) andMarshall, Robertshaw-Fulton Controls Co., 20 Lab. Arb. 212 (1953) (Wherethe union asserts the ability of an employee to perform certain overtimework, it "has the burden of supporting such allegation by clear and con-vincing proof." 14 Lab. Arb. at p. 622) ; Myers, W. L. Douglas Shoe Co., 10Lab. Arb. 261 (1948) and Reid, McKinney Mfg. Co., 19 Lab. Arb. 291 (1952)(Workers who claim the vested right to perform certain work must bearthe burden of proving that the vested right exists). See also Mann, HardyMfg. Corp., 20 Lab. Arb. 403 (1953) ; Kaplan, Sperry Gyroscope Co., Inc., 9Lab. Arb. 908 (1948) ; Holly, Avco Mfg. Co., 24 Lab. Arb. 269 (1955) ; Maggs,North Carolina Pulp Co., 12 Lab. Arb. 46 (1949). This principle has alsobeen applied in "interests" disputes, the union being held to have the burdenof proving justification for a wage increase. Simkin, Graphic Arts Ass'n ofWashington, D.C., 12 Lab. Arb. 293, 297 (1949) and Tyree, WashingtonWoodcraft Corp., 14 Lab. Arb. 242, 244 (1950).

40 Shipman, Bethlehem Steel Co., 11 Lab. Arb. 544 (1948); Cf. Pigors, BunnyBear, Inc., 27 Lab. Arb. 773 (1956); and Lohman, International HarvesterCo., 11 Lab. Arb. 101 (1948).

41 Bethlehem Steel Co., supra note 40.42 Shulman, Ford Motor Co., 2 Lab. Arb. 382 (1944).43 Epstein, Foote Bros. Gear & Machine Corp., 2 Lab. Arb. 84 (1946).44 Seward, International Harvester Co., 14 Lab. Arb. 151 (1950).

[Vol. 43


could have had knowledge of the basis for the claim prior to the timehe filed the grievance. 45 However, this last instance may be distin-guished from the others on the ground that in this case the exceptionrelated to a limitation of an already existing liability, while in the othercases the exception determined whether there was any liability at all.46

In some cases, arbitrators have held that a party holding the affira-tive of an issue may not necessarily have the burden of proof. This isparticularly true in cases in which the fundamental facts lie within thepeculiar knowledge of the opposing party.47 The courts have some-times shown inclination in this direction ;48 but the rule recognized bya majority of the courts seems to be that in cases of this sort the bur-den of proof in the strict sense remains with the party asserting theaffirmative, but that slight proof will be sufficient to shift the "burdenof proceeding with the evidence" to the other party.

49

Cases involving discharge or discipline, transfers and layoffs ofemployees raise problems of particular interest and will be discussedseparately in this paper.

VIIDISCHARGE AND DISCIPLINE CASES

A. Proof of "Just Cause" for DischargeAlthough there is some authority to the contrary,50 the courts gen-

erally hold that an employee suing for a wrongful discharge has the

45 McCoy, International Harvester Co., 16 Lab. Arb. 775 (1951).46 "The defense is in the nature of limitations, which is always a matter of af-

firmative plea and proof." Ibid., p. 778. Cf. Wardlaw, Moran Shoe Co., 4Lab. Arb. 587 (1946): "The retroactive date is also in issue. The burden ofproof that the grievance was filed with the company earlier than admittedis on the union." 4 Lab. Arb. at pp. 588-589.

47 ". . . these employees had been transferred out of the Research Departmentand were not to be expected to have first hand knowledge of what has trans-pired there after January 1, 1954. This is information which is peculiarlywithin the knowledge of the Company, and raises a problem regarding theburden of proof. Ordinarily the so-called burden of proof in arbitrationproceedings rests with the party filing the grievance-the Union in most cases.A recognized exception is made in cases involving disciplinary action wheremost arbitrators place upon the employer the burden of justifying the actionwhich it has taken in discharging, suspending or otherwise censuring an em-ployee. The reason customarily assigned for this procedural change is thatuntil the union's representatives are aware of the facts upon which the com-pany justifies its action, they are unable to rebut the case made by the em-ployer. Similar considerations have led the arbitrator in this case to concludethat since the reasons for the change as well as the nature of the operationssubsequent thereto, are matters within the peculiar knowledge of the Com-pany, it should have the burden of showing that it has, as it claims, abolishedor terminated the work formerly done by these employees in the ResearchDepartment." Reynard, Celotex Corp., 24 Lab. Arb. 369, 372-373 (1955). Cf.Maggs, Lockheed Aircraft Corp., 27 Lab. Arb. 709 (1956).

48 Fazio v. Pittsburgh Railways Co., 321 Pa. 7, 182 Alt. 696 (1936); Glou v.Security Ben. Ass'n, 114 Pa. Super. 139, 173 Alt. 883 (1934).

49 Giblin v. Dudley Hardware Co., 44 R.I. 371, 117 Alt. 418 (1922); Joost v.Craig, 131 Calif. 540, 63 Pac. 840 (1901). See also, Jones on Evidence inCivil Cases, 181 (3d ed., Bancroft Whitney, 1924).

50 Schafer v. Thurston Mfg. Co., 48 R.I. 244, 137 Alt. 2 (1927) : "In Rhode Island,upon trial of such issues as are here involved, the plaintiff starts with the

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MARQUETTE LAW REVIEW[

burden merely of proving the existence of the contract, his perform-ance thereof up to the time of his discharge and the resulting dam-ages.5 1 The burden of proving the existence of just or sufficient causefor the discharge, such being considered to be an affirmative defense,is held to rest on the employer.

5 2

In the usual labor arbitration case, however, the existence of thecontract (the collective agreement) and the performance by the em-ployee are rarely in issue. This being the case, the only remainingquestions are 1) the existence of just cause for the discharge, and 2)the problem of proof of damages, the usual issue being the former.On the former point, arbitrators have almost 53 invariably held that theburden of proving "just cause" is on the employer. 54 As will appear

obligation of showing that he performed his contract faithfully and accordingto his best skill and judgment. Defendant under the general issue may showincompetency, inefficiency or mismanagement which will defeat this claim.The burden of proof in the sense of establishing by a preponderance of theevidence that he has faithfully performed his contract and defendant hasbroken it rests upon the plaintiff. This burden does not shift. [citing cases]Plaintiff has prima facie sustained his burden when he testifies generally tofaithful performance and the defendant's breach. [citing case] The duty ofgoing forward with evidence of mismanagement or misconduct or unfaith-fulness is then shifted to defendant, 'if he would not have such prima faciecase result in an established case by the required weight of the evidence.'[citing cases] At the close of the testimony, however, if the evidence beevenly balanced, plaintiff has failed to establish his case and the verdict mustbe for the defendant." 48 R.I. at pp. 248-249. While this court places theburden of proving lack of misconduct on the plaintiff, procedurally the casebears a close resemblance to those cases cited infra which place the burdenof proving misconduct upon the defendant-employer. See also, Zitlin v.Max Heit Dress Corp., 151 Misc. 241, 271 N.Y.S. 275 (1934), and Russellv. Ogden Union Ry. & Depot Co., 122 Utah 107, 114-115, 247 P. 2d 257 (1952).Saari v. George C. Dates & Associates, 311 Mich. 624, 19 N.W. 2d 121 (1945).

521bid.; Boynton Cab Co. v. Giese, 237 Wis. 237, 296 N.W. 630 (1941); Wil-liams v. Leaf Tobacco Co., 293 Ky. 207, 168 S.W. 2d 570 (1943); Stoffel v.Metcalf e Const. Co., 145 Neb. 450, 17 N.W. 2d 3 (1945); see Annot. 49A.L.R. 488-489.

5 The extremely rare cases in which arbitrators have found the union obligedto prove lack of "just cause" have been decided on the basis of rather uniquecontract language in each instance. For example, in Swift & Co., 5 Lab. Arb.702 (1946), Professor Gregory, referring to a contract provision directingthe reinstatement of employees "proven to have been discharged withoutproper cause," stated the opinion that this language placed the burden of proofupon the union. Similarly, in another case involving substantially identicallanguage, the arbitrator held the burden of proof to be upon the union. Inthis latter case, however, that the burden of proceeding with the evidenceinitially fell upon the employer. Pollard, Aluminum Co. of America, 8 Lab.Arb. 234, 237 (1945). In American Smelting & Refining Co., 7 Lab. Arb.147 (1947), Arbitrator Wagner suggests that "a history of amicable union-management relations" might be relevant in determining the location of theburden of proof. (7 Lab. Arb. at p. 150). It is likely, however, that thisstatement was made with cases involving a charge of discrimination for unionactivity in mind. In a case involving the discharge of an airline pilot, Arbi-trator McCoy found the burden of proof to be on the union, for publicpolicy reasons. United Air Lines, Inc., 19 Lab. Arb. 585, 587 (1952).

54 Among many others, see, Platt, Palmer-Bee Co., 2 Lab. Arb. 63 (1945);Platt, Campbell, Wyant & Cannon Foundry Co., 1 Lab. Arb. 254 (1945);Cahn, Christ Cella's Restaurant, 7 Lab. Arb. 355 (1947) ; McKelvey, Colum-bian Rope Co., 7 Lab. Arb. 450 (1947); Hampton, Caterpillar Tractor Co.,7 Lab. Arb. 554 (1947); Wardlaw, Malone & Hyde, Inc., 5 Lab. Arb. 443

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from an examination of the cases, this is burden of proof in the strictsense; in addition, arbitrators have held consistently that the employerbears the initial "burden of proceeding with the evidence." 55

Various rationales are utilized by arbitrators to justify the imposi-tion of burden of proof in the strict sense upon the employer. Theseare at least six in number: 1) since discharge is the most severe penaltyan employer can impose, being the equivalent of "economic capitalpunishment", he must bear the burden of jusitfying such a seriousmove ;56 2) since the reasons for the employer's disciplinary action arepeculiarily within his own knowledge, he must carry the burden ofdemonstrating their adequacy, otherwise the employee would be unrea-sonably obligated to prove the "universal negative," i.e., that he wasguilty of no offense of any kind at any time ;57 3) it is "consistent withthe American tradition that a person should not be considered a wrong-doer until proof establishes his guilt" ;58 4) the imposition of the bur-den of proof on the employer is justifiable as merely an "extension ofscientific management to industrial relations";59 5) the existence of"just cause" for discharge is in the nature of an affirmative defense,therefore the burden rests on the party asserting it ;60 6) a "just cause"provision in the agreement, in view of circumstances peculiar to indus-trial relations, "requires the Company, when challenged, to retrace the[disciplinary] process and convince an impartial third person that thefacts acted upon warranted the action taken." 61 These approaches willbe discussed separately.

1. The most frequently advanced reason for imposing the burdenof proving "just cause" upon the employer is the sociological argu-ment that the employer can exact no greater penalty than discharge, or"economic capital punishment", and has the social obligation of justify-ing this action. 62 It is argued that a discharge results not only in the

(1946); Oppenheim, Delta Cartage Co., 29 Lab. Arb. 291 (1957); Cheney,Sears-Roebuck & Co., 6 Lab. Arb. 211 (1947); Reynard, American SugarRefining Co., 24 Lab. Arb. 66 (1955).

55Pollard, Aluminum Co. of America, 8 Lab. Arb. 234, 237 (1945); see also,supra note 23.

56 See Warns, Shea Chemical Corp., 29 Lab. Arb. 414, 415 (1957).5 See M1aggs, Lockheed Aircraft Corp., 27 Lab. Arb. 709, 710-711 (1956).58 Pollack, F. J. Kress Box Co., 24 Lab. Arb. 401, 405 (1955).50 Warns, Shea Chemical Corp., 29 Lab. Arb. 414, 415 (1957).60 Babb, United States Steel Corp., 29 Lab. Arb. 272, 276 (1957).61 Jones, Douglas Aircraft Co., 28 Lab. Arb. 198, 203 (1957). Another basis

asserted for requiring the employer to bear the burden of proof in thesecases is that he was the "moving party" and should therefore justify hisaction. This would appear to be somewhat irrelevant, however, since theemployer is the "moving party" in some way or another in virtually everyinstance of industrial dispute.

62Warns, Lockheed Aircraft Corp., 27 Lab. Arb. 512, 514 (1956); Warns,Shea Chemical Corp., 29 Lab. Arb. 414, 415 (1957); Hale, Howell RefiningCo., 27 Lab. Arb. 486, 491 (1956); Parker, Copco Steel & Engineering Co.,21 Lab. Arb. 410, 418 (1953) ; Conn. State Board, Marlin Rockwell Corp., 24Lab. Arb. 720 (1955); Conn. State Board, Enterprise & Century Undergar-

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loss of a job, but also of all the benefits, particularly valuable seniorityrights, granted by the collective agreement. 63 It is further argued thata disciplinary termination of employment marks the employee as unde-sirable, thereby affecting future job opportunities. 64 These are tellingarguments, a fact attested to by nearly universal acceptance. However,it has been suggested that these arguments, in some cases at least, arenot so significant as they might seem. One writer has stated:

On some occasion in the faraway past an arbitrator, momentari-ly intoxicated by his own eloquence, referred to the discharge ofan employee as 'economic capital punishment.' Unfortunately,this phrase stuck and is now one of the most honored entries inthe Arbitrator's Handy Compendium of Cliches. Now let ussee how much of the foregoing makes sense and how muchis pure drivel. Perhaps the best way to begin is by reining in therunaway metaphor, 'discharge is economic capital punishment'.Often, particularly in periods of full employment, it is nothingof the sort, and by the time the grievance reaches arbitration theemployee may be happily employed somewhere else. The unionmay have good reasons for pressing for a final determination ofthe issue involved, but even if the arbitrator decides the dis-charge was improper, the employee may not be interested in re-instatement. Every experienced arbitrator has had cases of thistype; they usually involve discharge for such reasons as exces-sive absenteeism or tardiness, inability to get along with super-visors or fellow employees, or substandard work .... 65

The writer of this quotation goes on to note, however, that no onedoubts the fact that the burden of proving "cause" rests with the em-ployer, the point being that it is unnecessary to resort to so rhetoricalan argument to sustain so simple a proposition.

2. An argument frequently used in this connection is that to re-quire the employee to prove his innocence of misconduct or other faultis to impose upon him the task of proving a "universal negative". Theargument is stated by one arbitrator as follows:

The common law does not always place the burden of proof onthe party who is seeking relief. Judges have realized that proofof a negative is extremely difficult. Accordingly, they have heldthat in many situations when the defending party is in a positionto prove an affirmative more easily than the party seeking reliefcan prove a negative, the burden of proof is on the former.Thus, when one person sues another for money lent, the lenderis not required to prove that the loan has never been paid; pay-ment is held to be an 'affirmative defense', to be proved by theborrower. For like reasons, when a contract forbids an em-

ment Co., 24 Lab. Arb. 63, 64 (1955); Mann, Indianapolis Chair Co., Inc.,20 Lab. Arb. 706, 708-709 (1953).

63 Parker, Copco Steel & Engineering Co., 21 Lab. Arb. 410, 418 (1953).64 Conn. State Board, Marlin Rockwell Corp., 24 Lab. Arb. 720 (1955).65 Aaron, Some Procedural Problems In Arbitration, 10 VAND. L. REv. 733,

740-741 (1957).

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ployer to discharge an employee unless a justification exists, anda discharged employee sues his employer asserting that he wasdischarged without justification, most judges and arbitratorshave reasoned that it would be unjust to put on the employee thenearly impossible burden of proving the 'universal negative' thathe had never been guilty of any conduct whatsoever justifyinghis discharge; they have held that the existence of a justificationfor the discharge is an affirmative defense to be proved by theemployer

6 6

The arbitrator then points out that the wisdom of this rule was demon-strated in the case before him, in which the union had apparently pro-ceeded under a completely erroneous assumption concerning the actualreason for the discharge.

However, the "universal negative" argument seems to have morerelevance to determining the location of the "burden of proceedingwith the evidence" than it does to the determination of which partybears the burden of proof in the strict sense. Indeed, the courts gener-ally hold in similar cases that the burden of proof remains with theparty asserting the affirmative, though the "burden of proceeding withthe evidence" may be shifted by slight proof, where essential evidenceis within the peculiar knowledge of the other party.6 - Nor is the "uni-versal negative" argument truly persuasive in most cases, since thealleged infraction has usually been clearly designated in the earliersteps of the grievance procedure. Indeed in some cases, the reasonfor discipline may be quite obvious. For example, an employee dis-charged for striking his foreman can. hardly be heard to say that hehas no knowledge of the employer's reasons for taking disciplinaryaction.

3. The argument that it is "consistent with the American traditionthat a person should not be considered a wrongdoer until proof esta-blishes his guilt"0 8 is one which finds some support in judicial decisions.It is generally held by the courts that an employee will not be assumedto have been derelict in his duties merely because of the fact that hehas been discharged.69

4. It is argued by some that since employees are at least as equallyimportant to an employer as are machines, manufacturing processesand pricing policies, management should be equally diligent in justify-ing its decisions in all these instances:

Because of the severity of the charge, the majority of arbitra-tors and courts of law place the burden of proof on manage-

6r Maggs, Lockheed Aircraft Corp., 27 Lab. Arb. 709, 710-711 (1956).67 Supra note 49.6s Supra note 58.69 Maratta v. Chas. H. Heer Dry Goods Co., 190 M1o. App. 420, 426, 177

S.W. 718 (1915); Morris Shoe Co. v. Coleman, 187 Ky. 837, 841, 221 SAV.242 (1920): see, however, Murray v. Paramount Petroleum & Products Co.,101 Conn. 238, 125 Alt. 617 (1924).

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ment in a discharge case. All of this is not so much a shift inphilosophy toward sympathy for the worker as much as it ismerely an extension of scientific management to industrial rela-tions. A company in its operational decisions is impersonal,objective and carefully weighs decisions to be sure that they arejustified by the principles involved and the facts. Today per-sonnel and industrial relations must be similarly accorded thesame intellectual emphasis. These are the facts of modern indus-trial life."

As a judgment of social desireability, the above statement seems un-challengeable. If management feels the responsibility (which somesay it must) to justify to the stockholders, the public or the govern-ment its decisions eliminating or altering basic products or fundamentalmanufacturing techniques, or substantially revising its pricing policies,it should also feel the obligation to justify the termination of the em-ployment of an individual, a matter of more remote, but perhaps equalqualitative social significance. Though this argument springs from theexpectations of society from employers, many argue that it should havesome relevance in the shaping of legal rules applicable to such cases.

5. Another argument, directly imported from judicial reasoning, isthat "just cause" is an affirmative defense, the burden of proving which(even in the strict sense) rests upon the party asserting it.71 Aspointed out above,72 this is the approach adopted by most, but not all,7 3

courts in resolving problems of this sort.6. Other arbitrators make the argument (though it is perhaps no

more than a summary of those arguments outlined above, and a state-ment of their result) that the nature of the arbitration process itselfrequires the burden of proof to rest upon the employer:

The rationale of these rulings [regarding burden of proof] restson the functional differences between Court proceedings andarbitration hearings, and seeks to shape procedures functionallysound as applied to the latter where (in discharge cases) theultimate industrial penalty has already been assessed and appliedby the employer, and arbitration requires that the process bereversed, the steps taken retraced, and the situation reconstruct-ed, so that an impartial tribunal may be convinced that the factswarranted the action taken and that no violation of proceduraldue process has occurred.74

70 Warns, Shea Chemical Corp., 29 Lab. Arb. 414, 415 (1957).71 Maggs, Lockheed Aircraft Corp., 27 Lab. Arb. 709 (1956); Babb, Allis-

Chalmers Mfg. Co., 29 Lab. Arb. 356, 358 (1957) ; Babb, United States SteelCorp., 29 Lab. Arb. 272, 276 (1957). See court cases cited supra notes 51and 52.

7'2 Supra notes 51 and 52.73 Supra note 50.74 Babb, United States Steel Corp., 29 Lab. Arb. 272, 276 (1957), citing Healy,

Swift & Co., 12 Lab. Arb. 108 (1948) ; Pollack, F. J. Kress Box Co., 24 Lab.Arb. 401 (1955) ; Hale, Howell Refining Co., 27 Lab. Arb. 486 (1956) ; Maggs,Lockheed Aircraft Corp., 27 Lab. Arb. 709 (1956) and Jones, Douglas Air-craft Co., 28 Lab. Arb. 198 (1957).

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In requiring the employer to "retrace the steps taken," it seems thatthis approach is no more than a statement in different phraseology thatthe employer should bear the burden of proof. (It is, however, difficultto see what the fact that the "ultimate industrial penalty has alreadybeen assessed" has to do with it, since almost all arbitration disputesrelate to past occurrences of one kind or another.)

Whatever the rationale adopted, whether any or all of the abovesix arguments are accepted, it seems quite clear that the universal rulein grievance arbitration is that the employer must carry the burdenof proof of "just cause" in a discharge case.7 - This unanimity israther heartening, and suggests that, even in a field so amorphous asindustrial relations, some principles have such obvious validity thatthey will be accepted and applied with uniformity by a wide varietyof personalities in a great diversity of situations. The consistency ofarbitral opinion on this point seems to suggst the existence of anemerging and evolving system of industrial jurisprudence.

B. Burden of Showing Propriety or Impropriety of the Extent ofDiscipline

While arbitrators agree on the location of the burden of proving"just cause", this unanimity does not extend to other burden of proofproblems connected with discharge cases. For example, there is notcomplete agreement on where the burden of proving the propriety orexcessiveness of the disciplinary penalty lies. Some arbitrators statesimply that

. - once the employer has successfully established bases for dis-charge, the burden shifts to the union to demonstrate that thepenalty of discharge is too severe. 8

A rather imposing number of arbitrators reach the same result in amore sophisticated and indirect fashion:

Where an employee has violated a rule or engaged in conductmeriting disciplinary action, it is primarily the function of man-agement to decide upon the proper penalty. If management actsin good faith upon a fair investigation and fixes a penalty notinconsistent with that imposed in other like cases, an arbitratorshould not disturb it. The only circumstances under whicha penalty imposed by management can be rightfully set aside by

75 This is apparently as true in cases involving non-disciplinary terminations ofemployment as it is in cases of discharge for misconduct. See e.g., Naggi,Gaylord Container Corp., 10 Lab. Arb. 439 (1948); Williams, Beaunit Mills,Inc., 20 Lab. Arb. 784 (1953); Ross, American Smelting & Refining Co., 24Lab. Arb. 857 (1955); Whitton, Allen Warehouse Co., 26 Lab. Arb. 866(1956) ; Cf. Baab, Sager Lock Works, 12 Lab. Arb. 495 (1949).

76 Cheit, Russell Creamery Co., 21 Lab. Arb. 293, 298 (1953). See also, Healy,Swift & Co., 12 Lab. Arb. 108, 114 (1948) ; Babb, United States Steel Corp.,29 Lab. Arb. 272, 276 (1957); Livengood, Carolina Coach Co., 20 Lab. Arb.451, 455 (1953); Cf. Selekman, Eastern Stainless Steel Corp., 7 Lab. Arb.267, 270 (1947); also see Pollack, F. J. Kress Box Co., 24 Lab. Arb. 401, 405(1955).

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an arbitrator are those where discrimination, unfairness, orcapricious and arbitrary action are proved-in other words,where there has been abuse of discretion.7

7

Since arbitrariness, discrimination or caprice cannot be assumed with-out proof, the practical effect of this approach is to require the unionto bear the burden of proving that these factors are in the case. Inother words, under this approach, once management has shown anemployee to be guilty of an offense, the burden shifts to the union toshow that the penalty was assessed in an arbitrary, discriminatory orcapricious manner. It is then the union's task to bring in evidenceconcerning the employee's seniority, his previous good conduct, hisskill and utility as a workman, his family status (where such is rele-vant), any inconsistencies of management in disciplining employeesfor offenses of this type, and any other mitigating circumstances. Theunion, then, under this approach, bears the risk of non-persuasion.

The contrary rule involves this principle: where the contract for-bids discharge without "just cause", the employer has the burden ofproving "just cause" for the discharge. In other words, he must provethat "the punishment fits the crime." The corollary of this propositionis that an admitted offense might well constitute "just cause" for somekind of discipline, but not "just cause" for discharge. As one arbitra-tor puts it, in a 1950 decision:

77 McCoy, Stockham Pipe Fittings Co., 1 Lab. Arb. 160, 162 (1945); see alsoMcCoy, Perkins Oil Co., 1 Lab. Arb. 447, 449 (1946). In a more recent case,Esso Standard Oil Co., 19 Lab. Arb. 495, 497 (1952), Arbitrator McCoyexplicitly followed his earlier rulings. Other cases holding similarly: Dworkin,Chesapeake & Potomac Telephone Co., 21 Lab. Arb. 367, 377-378 (1953);Justin, Walter Kidde & Co., Inc., 10 Lab. Arb. 265, 268 (1948) ; Gilden, CornProducts Refining Co., 21 Lab. Arb. 105, 107 (1953) ; Prasow, National LeadCo., 13 Lab. Arb. 28, 30 (1949); Anrod, Morris Paper Mills, 20 Lab. Arb.653, 658 (1953) ; Donaldson, Ideal Cement Co., 13 Lab. Arb. 943, 945 (1950) ;Larkin, Cities Service Oil Co., 17 Lab. Arb. 335 (1951). In the case last cited,after recognizing and adopting the McCoy approach, Arbitrator Larkin addsthis caveat (17 Lab. Arb. at p. 341) : "But if such reasoning is carried too farit can vitiate that part of a union contract which provides for a review ofdisciplinary actions. Arbitrators are sometimes anxious to 'wash their hands'of messy situations and forget that it is their duty to review the facts and tomake an independent determination of the issue, as to the fairness of suchhasty decisions. Few such disciplinary actions are taken without the presenceof certain emotional factors which should be taken into account. In the lastanalysis, the very clause in the parties' Agreement which brings the arbitratorinto the picture is there to provide for a review of Management's decisionsin such matters. And if the arbitrator is worth his salt, he will not shrinkhis responsibility to weigh the facts honestly."

Insofar as the McCoy approach implies that the arbitrator is powerless tomodify discipline, it is described as being a minority position: Dworkin,William Brooks Shoe Co., 19 Lab. Arb. 65, 72 (1952). However, McCoyhimself recognizes the power of the arbitrator to modify discipline in aproper case. McCoy, Chattanooga Box & Lumber Co., 10 Lab. Arb. 260, 261(1948); cf. McCoy, International Harvester Co., 12 Lab. Arb. 653 (1949).Where it is held that the arbitrator has the power to modify discipline (seePlatt, The Arbitration Process in the Settlement of Labor Disputes, 31 J.Am. Jud. Soc., August, 1947, p. 54), it would seem the better rule that theunion has the burden of proving facts sufficient to warrant modification.

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In a discharge case, when the collective agreement between theparties protects employees against discharge where there is not'proper cause', it is well accepted that the burden of justifyingthe discharge or other discipline is upon the employer. This in-volves the necessity on the employer of showing both the infrac-tion of some established rule of employee conduct and the pro-priety of the disciplinary action taken, in this case, of discharge.(Emphasis added)78

From this point of view, the employer has the obligation of showingthat the penalty assessed was just and proper under all the circum-stances, and was consistent with disciplinary action taken in othercases.

It can be argued that neither of these positions, nakedly stated, iscompletely valid. The point of view which places on the union theburden of proving excessiveness of the penalty fails to take accountof the fact that not all breaches of discipline warrant extreme penal-ties. To say that an employer need only prove some act of misconduct,and that the union must then produce evidence to show that the disci-pline was improper ignores the commonly accepted proposition thatthere must be some proportion between the punishment and the offense.Indeed, no one would argue that an employer, merely by showing atrivial tardiness by an employee, could thus shift to the union theburden of showing the excessiveness of a penalty of discharge.

On the other hand, when the employer has produced evidencesufficient to establish the commission of an act of misconduct primafacie meriting discharge/7sa he should not be required to go further,and show that there are no mitigating circumstances sufficient to affectthe result. The more reasonable view would seem to be that the unionshould bear the burden of proving such circumstances. Indeed, it isusually in by far a better position to do so, since presumably it knowsthe precise grounds for its claim of excessiveness. For example, ifthe union claims that the discipline imposed is inconsistent with thedegree of discipline imposed in other like cases, it should be requiredto show which cases it has in mind and the fact that they actually aresimilar to the one in dispute. Any other procedure would, in effect,require the employer to prove the "universal negative", a result ofundesireability equal to that in cases in which such is required of theunion in proving lack of just cause.78 Smith, Armen Berry Casing Co., 17 Lab. Arb. 179, 181 (1950).7sa What is "misconduct prima facie meriting discharge", is, of course, a question

not easily answered. In cases in which the collective agreement contains aschedule of offenses and remedies agreed to be appropriate, the schedule itselfmay provide the answer. More commonly, however, the criterion will be inthe judgment of the arbitrator, giving due effect, of course, to the mannerin which the community at large regards such offenses, and to the fact thatthe determination of disciplinary penalties is generally a management function.Further examination of this and similar points is, however, beyond the scopeof this paper.

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C. Burden of Proving Discrimination or Absence ThereofWhile the employer is required to prove facts constiuting "just

cause" for discharge, if the union asserts that the true reason for thetermination of the grievant was his union activity, the union mustprove that such is the case. In other words, where the union allegesdiscrimination,7 9 or persecution 0 in discipline cases, arbitrators con-sistently hold that the union bears the burden of proof. Because of theseriousness of the charge, it has been held that proof of discriminationmust be "substantial", 8' specific, 8 2 and more than mere "hints andinferences,"' 3 or bare assertions.8 4 There must be more than a mereshowing that the dischargee was an active union member.8 5 Nor is itsufficient to show that the employer has treated several employees in adisparate fashion:

. . . it is incumbent upon one who charges that a certain act isimproperly discriminatory to prove that the two persons andtwo situations in respect to which different actions were takenwere in fact so similar that only similar action would have beenfair and proper in both.

8 6

However, where the union produces "substantial evidence justify-ing a conclusion that the employer is opposed to the organization ofhis employees or has shown a previous hostile atitude to a labor organ-ization representing his employees, ' 87 some arbitrators have held that

this is sufficient to shift the burden of proceeding with the evidenceback to the employer on the issue of discrimination in the individualcase.

8

S9Doyle, Northwestern Bell Telephone Co., 19 Lab. Arb. 111 (1952) ; Cole,Flintkote Co., 3 Lab. Arb. 770 (1946) ; Hampton, Keystone Asphalt ProductsCo., 3 Lab. Arb. 789 (1946); Allen, Kaiser Company, Inc., 4 Lab. Arb. 346(1946) ; Reynolds, Stenchever's of Hackensack, Inc., 7 Lab. Arb. 922 (1947) ;Justin, American Agricultural Chemical Co., 7 Lab. Arb. 715 (1947); King,Columbian Rope Co., 3 Lab. Arb. 90 (1946) ; Scarborough, Mack Mfg. Co., 2Lab. Arb. 520 (1944) ; Elson, Indiana Railroad, 4 Lab. Arb. 70 (1946).

80 Ziegler, Vickers, Inc., 6 Lab. Arb. 663 (1947).81 Babb, Submarine Signal Co., 4 Lab. Arb. 56 (1956): "Substantial evidence

means evidence which a reasonable and unbiased mind might accept as ade-quate to support a conclusion and affording a substantial basis of fact fromwhich the fact in issue can reasonably be inferred, as distinguished from evi-dence merely creating a suspicion or amounting to no more than a scintilla,or equally supporting inconsistent inferences." (4 Lab. Arb. at p. 65). Seealso McCoy, Pan American Petroleum Corp., 2 Lab. Arb. 541 (1946):"... a strong case must be made out before an arbitrator would be justifiedin attributing the discharge to an alleged motive to discourage union ac-tivity." (2 Lab. Arb. at p. 544).

82 Aaron, Douglas Aircraft Co., Inc., 3 Lab. Arb. 598 (1946).83 Ibid.84 Abernethy, American Zinc & Chemical Co., 6 Lab. Arb. 314, 320 (1946).85 Cheney, Mitchell Camera Corp., 9 Lab. Arb. 370 (1948).86 Updegraff, Indiana Railroad, 6 Lab. Arb. 789, 792 (1947).87 Prasow, Grayson Heat Control, Ltd., 2 Lab. Arb. 335, 338 (1945).88 Ibid.; the same thought process is suggested in Reynolds, Irvington Varnish

& Insulator Co., 8 Lab. Arb. 1041, 1042-1043 (1947), and Feinberg, Grey Ad-vertising Agency, Inc., 7 Lab. Arb. 107, 110-111 (1947).

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D. Burden of Proof in Discharge of Probationary EmployeesAs the law stands, in the absence of an agreement to the contrary,

an individual not hired for a definite term may be discharged by hisemployer at any time, for good cause, bad cause, or no cause at all. 9

The National Labor Relations Act has varied this rule only to theextent of prohibiting employers from discharging or otherwise dis-criminating against employees for engaging in activities protected bythat Act.9 0

Most collective bargaining agreements provide that the employermay discharge employees only for "just" or "proper" cause. If thisdoes not appear expressly, some arbitrators have shown an inclinationto hold that it is implied in other terms of the agreement. 91 It isusually, however, provided in the agreement that an employee does notacquire the right not to be discharged without cause until passage of aprobationary period.92 This has the effect (absent a charge of unlawfuldiscrimination) of leaving unimpaired the management right to dis-charge probationary employees for cause of any kind or for no causeat all.93 Q

Some arbitrators recognize this rule and decline to examine thefacts underlying the discharge of a probationary employee, unless thecase reveals an element of illegal discrimination (the burden of proofon this latter point, of course, rests on the union) . 4 Several otherarbitrators, however, hold that the discharge of a probationary em-ployee may be set aside not only for wrongful discrimination, but alsofor employer arbitrariness or caprice. 95 Under these decisions also,the burden of proving arbitrariness or caprice rests with the union,96

since such cannot be presumed in the absence of evidence.

89 Associated Press v. National Labor Relations Board, 301 U.S. 103, 132 (1937);United States Steel Corp. v. Nichols, 229 F. 2d 396, 399 (1956) ; cert. denied,351 U.S. 950 (1956).

90 Cases cited supra note 89.91 For example, Conn. State Board, Atwater Mfg. Co., 13 Lab. Arb. 747 (1949).92 For example, Art. VIII, sec. 4 (b) of the 1955-1958 Agreement between Ford

Motor Company and the U.A.W.-C.I.O. provides: "The Company may dis-charge or transfer employees at any time during the probationary period.However, any claims of discrimination in connection with the transfer ordischarge of temporary employees may be taken up as a grievance."

93 Paragraph 245 of the 1955-1958 Agreement between Allis-Chalmers Mfg. Co.and Local 248, U.A.W.-C.I.O., is more explicit: "A probationary employeehas no seniority rights, and his retention is entirely within the discretion ofthe Company."

94 Shulman, Ford Motor Co., 6 Lab. Arb. 853 (1946): "Discrimination is notestablished by showing that the cause asserted is not a good one or is notsupported by the evidence or rests upon erroneous findings of fact." (6 Lab.Arb. at p. 854). See also, Cole, Flintkote Co., 3 Lab. Arb. 770 (1946).

9 5 R. A. Smith, Ex-Cell-O Corp., 21 Lab. Arb. 659 (1953); Komaroff, NorthAmerican Aviation, Inc., 19 Lab. Arb. 565 (1952).

96 Cases cited supra note 95. It is beyond the scope of this paper to evaluate thesubstantive validity of these approaches.

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E. Burden of Proof in Cases Involving Discipline Less Than Dis-charge

While arbitrators agree that the burden of proof in a disciplinarydischarge case rests on the employer, there is disagreement as towhether the same considerations should extend to cases in which thedisciplinary penalty is less than discharge. Most arbitrators simplystate that the rule is the same: the employer bears the burden of prov-ing justification for any discipline, whether discharge or somethingless severe. 7 This has been held to apply even in the case of a simplereprimand. 98 On the other hand, it has been stated, "Where, however,discipline less than discharge is involved, it is generally held that theburden is on the union to prove that the company lacked reasonableground for their decision to discipline the employee." 99

While the latter point of view is one frequently pressed by em-ployers (even those who would concede the validity of the oppositerule in discharge cases), it is one which is difficult to defend on prin-ciple. Of the six arguments most commonly advanced to sustain theimposition of the burden of prof on the employer in dischargecases,10 only one, the "economic capital punishment" argument, isclearly inapplicable to cases involving a milder penalty. The other fiveappear to have equal relevance to both kinds of situations: in neithercase should an employee be required to prove the "universal negative";in neither case should the employee "be considered a wrongdoer untilproof establishes his guilt"; in both kinds of case the existence of "justcause" is obviously affirmative defense; in each kind of case there isequal basis for requiring the "extension of scientific management toindustrial relations" and requiring the employer to "retrace the pro-cess of discipline."

For the above reasons, the better rule would seem to be that thesame "rules" should be applied in minor discipline cases as in dischargecases. The employer should be required to prove misconduct primafacie sufficient to sustain the degree of discipline imposed ;la the

97 R. A. Smith, Armen Berry Casing Co., 17 Lab. Arb. 179, 181 (1950); Maggs,Lockheed Aircraft Corp., 27 Lab. Arb. 709, 711 (1956); Hilpert, St. JosephLead Co., 16 Lab. Arb. 138, 143 (1951); cf., Livengood, Sayles BiltmoreBleacheries, Inc., 24 Lab. Arb. 408 (1955).

9s Scheiber, A. C. & C. Co., Inc., 24 Lab. Arb. 538 (1955) ; Platt, Firestone Tire& Rubber Co., 14 Lab. Arb. 552 (1950).

99 Warns, Dayton Malleable Iron Co., 27 Lab. Arb. 242, 245 (1956). Warns con-tinues, "More specifically then, I must decide whether the Union has provedthat the Company in these grievances lacked reasonable ground, showed badfaith, misinterpreted the evidence or disciplined grievants according to dif-ferent standards of performance than other employees similarly situated."(Ibid.) See also, Gorder, Walter Butler Shipbuilders, Inc., 2 Lab. Arb. 633,

635 (1944); and Warns, National Carbide Co., 26 Lab. Arb. 177, 178 (1956).:o0 See supra notes 56-61.Ooa Cf. supra note 78a.

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union should be required, if such is in issue, to show whatever mitigat-ing factors it claims render the discipline excessive.

F. Burden of Proof Problems in Specific Discipline Cases

Assuming the general "rule" that the employer must prove theexistence of "just cause" for discipline, where management's preroga-tive is thus qualified by the agreement, there are several interestingsituations demonstrating its application.

One of these is the case of discharge or other discipline for absen-teeism. All agree that in such case the employer has the burden ofproof just as in any other discipline case.' 0 ' However, where theagreement or practice of the parties excuses absences where there is"good cause" therefor, there is a problem of who must prove thepresence or absence of "good cause" when such is alleged. In some casesit has been held that the burden continues to rest on the employer, andthat he must prove as part of his case that the absence or absences reliedon were without justification or reasonable excuse. 0 2 What appears tobe the more logical view, however, is that once the employer hasproved that the employee has been absent an excessive number of times,the burden of going forward with the evidence shifts to the employee

. . the claim that a man was wrongfully discharged despitemaking 'reasonable requests' and 'excuses' requires that he es-tablish the reasonableness of his requests and the truth of hisexcuses for being absent from work. It would be obviouslywrong to require that the employer disprove a vague and unde-fined claim of sickness by an employee. The latter havingaffirmatively asserted sickness under all the rules of proceduremust be expected and required to offer proof of it. To hold

101 Jaffee, George D. Ellis & Sons, 27 Lab. Arb. 562, 564-565 (1956) ; Updegraff,Mississippi Lime Co., 29 Lab. Arb. 559, 561 (1957) ; Kates, Hertner ElectricCo., 25 Lab. Arb. 281, 283 (1955).

102 Kates, Hertner Electric Co., 25 Lab. Arb. 281, 283 (1955), citing Beckman v.Garrett, 66 Ohio St. 136, 64 N.E. 62 (1902), in which case a jury instructionto this effect was approved. See also, Blair, B. F. Goodrich Co., 2 Lab. Arb.278, 279 (1946) and Seward, Tennessee Coal Iron & R.R. Co., 11 Lab. Arb.909 (1948). "To support Captain's discharge the Company had the burden ofproving that during his absence Captain devoted the major portion of histime not to resting and sleeping at home but to the operation of his restau-rant and doughnut business. This the Company has failed to establish"' (11Lab. Arb. at p. 912). However, in American Steel & Wire Co., 12 Lab. Arb.47 (1948), Arbitrator Seward states (at pp. 48-49): "When an employeeabsents himself from work without permission, he assumes the burden ofproving that he had reasonable and just cause for so doing. The grievantin this case has declined to give any explanation whatsoever of the reasonswhich required that he be 'out of town' on the night in question. Had hebeen willing to explain the reasons for his absence, the Board would havebeen in a position to consider them and decide whether or not they con-stituted 'just cause' within the meaning of the Agreement. On the presentrecord, however, we have no alternative but to uphold the discipline asproperly imposed."

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otherwise would permit the absent employee to assert any fan-tastic reason for absence which might occur to the imaginationand challenge the employer to disprove it. To require the em-ployee to establish that his claim of illness is well founded isonly to require proof of the person most likely to be in touchwith all the evidence and be able to produce it, if his claim iscorrect. He is likely to be defeated on such an endeavor only ifhis claim is not correct. Clearly this is why it is established pro-cedure to require the absentee employee to prove his excusewhen its correctness is challenged."'

to prove that the absences were nonetheless for "good cause" (if suchis a defense) .103 Professor Updegraff states this view:While it can be argued to the contrary (where the contract or theparties' practice permits) that lack of excuse is an essential part of theemployer's case, and he should prove the truth of the allegation, stillthis is a fact which is peculiarly within the knowledge of the absenteehimself. It is, therefore, somewhat difficult to justify the holding thatthe employer must prove the inexcusability of the employee's absencefrom the plant.

On the other hand, when the employee has credibly testified tofacts which constitute an ecuse for his absence, the burden of proceed-ing should surely shift back to the employer to show that the excusewas inadequate or that the testimony was untruthful.

Another interesting example of the operation of burden of proof isthe case of discipline for insubordination. In such case, the employeris usually held to have the burden of proving that the order wasgiven, that it was given by someone authorized to do so, that the em-ployee was in a position to hear the order, that the order was withinthe scope of the employment, etc. However, it seems well establishedthat an employee may decline a job assignment with impunity wherethe performance of it would, in his reasonable belief, subject him to anunusual hazard to his life, limb or health.15 If an employee assertsin a disciplinary proceeding that such was the basis for his refusal,arbitrators appear to agree that the employee (or the union in hisbehalf) must proceed to prove that he reasonably believed that obe-dience would have placed him in jeopardy.

10 6

Where a strike has occurred in violation of the labor agreement,103 Jaffee, George D. Ellis & Sons, 27 Lab. Arb. 562, 564-565 (1956); Shipman,

Ingersoll-Rand Co., 7 Lab. Arb. 564, 571 (1947).104 Updegraff, Mississippi Lime Co., 29 Lab. Arb. 559, 561 (1957).105 Hilpert, St. Joseph Lead Co., 16 Lab. Arb. 138 (1951).106 Ibid.; Emery, National Zinc Co., 19 Lab. Arb. 888, 890 (1953); Platt, Fire-

stone Tire & Rubber Co., 14 Lab. Arb. 552 (1950) ; cf. Rathbun, WaterfrontEmployers' Ass'n, 4 Lab. Arb. 234 and 4 Lab. Arb. 242 (1946). In theselatter two cases, the arbitrator makes the same rulings where the unionclaimed that strikes were excusable because of unsafe working conditions.

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most arbitrators hold that an employer may elect to discipline all par-ticipants,10 7 or only the leaders. If it elects the latter, however, itappears to be the majority opinion that actual leadership must beproved by the employer. 08 Evidence that the dischargee was a unionofficial, however, charged with the duty of taking preventative action,may be sufficient to shift to the dischargee the burden of proving thathe fulfilled his duty.10 9

It is recognized that proof of leadership in a wildcat strike is oftenmost difficult, and that circumstantial evidence may be all that is avail-able. 10 Evidence of the presence of an individual in a small group ofwrongdoers may be sufficient to cast upon him the burden of showingthat he was not an active participant."'

In a fighting case, when the disciplined employee asserts that hewas justifiably defending himself, the employer has been held to havethe burden of proving (as part of his principal case) that the employeewas an aggressor and was not merely defending himself." 2 Thisapproach seems somewhat opposed, however, to the accepted rule inlitigation, that in an assault case the burden is on the defendant toplead and prove any claim of justification."13

G. Quantum of Proof Required in Discipline CasesThe general rule in civil litigation is that the party who carries the

burden of proof on a particular issue must prove the point by a "pre-ponderance of the evidence.""14 This means that he must introduceevidence sufficient to convince the tribunal of the actual truth of theproposition urged, so that actual belief exists in the mind of the tri-bunal notwithstanding any doubts that may linger there; it is morethan quantitative probability, and requires at least sufficient evidenceto remove the matter from the realm of conjecture."'

On the other hand, in criminal prosecutions, the state is requiredto prove guilt "beyond a reasonable doubt" or "to a moral certainty";this means such proof "as satisfies the judgment and consciences ofthe jury, as reasonable men, that the crime charged has been committed

107 McCoy, Rheem Mfg. Co., 8 Lab. Arb. 85, 87 (1947); cf. Kelliher, Lone StarSteel Co., 30 Lab. Arb. 519 (1958).

10s McCoy, Rheem Mfg. Co., supra note 107; Bartlett, Shell Oil Co., Inc., 13Lab. Arb. 273, 277 (1949); Wolff, Mueller Brass Co., 3 Lab. Arb. 285, 293(1946).

109 Updegraff, John Deere Ottumwa Works, 11 Lab. Arb. 675, 678 (1948).110 Bowles, McLouth Steel Corp., 24 Lab. Arb. 761, 764 (1955).113 McCoy, Southern Bell Telephone & Telegraph Co., 26 Lab. Arb. 186, 187

(1956).112 Hepburn, Consolidated Vultee Aircraft Corp., 11 Lab. Arb. 152, 153 (1948);

Babb, Allis-Chalmers Mfg. Co., 29 Lab. Arb. 356 (1957)."13 Morris v. McClellan, 154 Ala. 639, 45 So. 641 (1908); Lee Line Steamers v

Robinson, 218 Fed. 559 (6th Cir. 1914)."14 Jones, Evidence in Civil Cases 5 at 5 (3d ed. 1914).1"5 Babb, Allis-Chalmers Mfg. Co., extensively quoted supra note 22a.

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by the defendant, and so satisfies them as to leave no other reasonableconclusion possible.""' When the commission of a crime is directlybrought into issue in a civil case, the prevalent American view (con-trary to the rule in England) is that such need only be proved by apreponderance of the evidence,117 or by "satisfactory and convincing"evidence. 11 It need not be proved beyond a reasonable doubt.

Since arbitration is in the nature of a civil proceeding, 119 we shouldexpect to find the requirement that parties prove their claims and af-firmative defenses by a preponderence of the evidence, regardless oftheir particular nature. But such is not uniformly the case: indeed,there is much confusion and conflict in the reported cases on the sub-ject. Most of this conflict is found in cases involving discipline.

In discipline involving misconduct which is not also a violation ofthe criminal law, there is a fair amount of agreement that the offenseneed not be proved by more than a preponderance of the evidence, orsome similar standard. 1

Burden of Proof in Grievance Arbitration

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