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WORKERS, LOCAL LODGE NO. 1349, Union, and BARD MANUFACTURING COMPANY, Company. ___________________________________________/ FMCS No. 88-08029 Grievance No. 26-87

OPINION OF THE ARBITRATOR July 7, 1988 After a Hearing Held June 2, 1988 In the Bryan, Ohio

For the Union: David L. Schooley Business Representative IAM&AM - AFL-CIO District Lodge No. 57 406 North Bryan Street Hicksville, Ohio 43526

For the Company: Albert R. Noel, Jr. Industrial Relations Manager Bard Manufacturing Company Evansport Road P.O. Box 607 Bryan, Ohio 43506

Background The Company manufactures air conditioning and heating equipment at its plant located in Bryan, Ohio (JX 4). Grievant was hired in 1978 and was, at the time of the events in question, employed by the Company as an air conditioner assembler (JX 3; JX 1, Appendix A). Grievant is a member of the Union which represents the Company's production and maintenance employees, pursuant to a collective bargaining agreement dated January 24, 1987 (JX 1) [CBA]. On Thursday, June 18, 1987, the following item appeared on page 13 of The Bryan Times: [Grievant], 30, Bryan, pleaded guilty to a prosecutor's bill of information charging him with gross sexual imposition, a third degree felony, during a hearing held Tuesday in Williams County Common Pleas Court. Judge Robert Wilson ordered a pre-sentence investigation to be conducted prior to sentencing. [Grievant] faces up to two years in prison and a $1,000 fine. CX 1. Upon hearing of this matter, the Company's Manager of Industrial Relations contacted the County Prosecutor, who informed the Manager that conviction was not official until entry into court records, which occurred June 29, 1987, Case No 6015 (CX 2). The Court's Journal Entry recites the judge's ruling: [T]he Court finds that the Defendant understands his rights, and

voluntarily waived or rejected said rights and entered and made a voluntary and informed plea of Guilty to the one count Bill of Information and the Court accepts said plea and hereby finds the Defendant Guilty of a violation of Ohio Revised Code Section 2907.05(A)(3), Gross Sexual Information, a felony of the third degree. Id., p 3. Company Work Rules provide in pertinent part: Violation of any of the following will subject the employee to immediate suspension and final disciplinary action up to and including discharge (depending upon Management's judgment of the seriousness of the offense and other relevant factors). 9. Arrest and conviction of felony charge. JX 2, pp 1-2; see also CBA Article 19. The Company received a copy of the court's Journal Entry (CX 2) on July 9, 1987, whereupon the Industrial Relations Manager prepared a Personnel Memorandum to Grievant, which stated in its entirety: You are discharged from your employment at Bard Manufacturing Company effective July 9, 1987, for violation of Work Rule #9, arrest and conviction of felony charge, in that you pleaded guilty to a felony charge in Williams County Common Pleas Court on June 17, 1987. CX 3. The Industrial Relations Manager then called the Assistant Plant Superintendent and told him to have Grievant report to the Manager's office. In turn, the Superintendent called Grievant's Foreman and instructed him to tell Grievant to report to the Manager's office. Upon reporting as directed, Grievant was presented with a copy of the Journal Entry and the Personnel Memorandum. The Shop Steward was

summoned, and Grievant was given the contractual 15 minutes to confer with the Steward (CBA Sec 20.7) and to collect his belongings. The Steward determined that a grievance should be filed, which was done by July 14, 1987 (JX 3). See CBA Sec 20.4.3. The Step 3 grievance meeting was waived, and the Union requested an extension of time to obtain the advice of legal counsel, prior to the Step 4 meeting. See CBA Secs 20.4.4 & 20.4.5. On August 24, 1987, Grievant was sentenced to two years in prison, where he served until December 7, 1987, when he was released and placed on probation (UX 2). The Step 4 grievance meeting took place January 14, 1988. CBA Sec 20.4.5. Again, the Company denied the grievance. The Union voted to take the matter to arbitration (CBA Secs 20.4.6 & 20.10), and a hearing was held at Company offices on June 2, 1988, in Bryan. Technical and Procedural Issues Let us dispense early on with the Union's technical and procedural objections. In a prior matter, the arbitrator wrote: If at all possible, disputes should be resolved on the merits and procedural violations should be redressed separately, in order to maintain public confidence in and protect the integrity of the dispute resolution process. Oolite Industries, Inc and Central States Pension Fund, 8 EBC (BNA) 2009, 2026 (1987). Parties come to arbitration to have disputes resolved on the merits, not to be

thrown out on technicalities; there is all too much of that in courts. It, of course, is not always possible to ignore procedural issues, such as when one party has delayed long beyond a limitation period without any plausible excuse. For the most part, however, it is possible to get to the heart of the matter, and this case is no exception. The first technical issue which the Union raises concerns the meaning of arrest in Work Rule 9. The Union argues that Grievant, although imprisoned, was never in fact arrested within the meaning of Ohio law, because he voluntarily turned himself in to authorities and pleaded guilty. In support of its contention, the Union cites the definitions of arrest found in 57 O Jur 2d at 70 (UX 1). The Company does not quarrel with the legal definition of arrest; indeed, the Company concedes that the question of whether Grievant was arrested within the meaning of Ohio law falls within a gray area. However, the Company argues that the issue before the arbitrator is not the meaning of arrest under Ohio law but rather its meaning under the CBA. I agree with the Company. The industrial Relations Manager testified that the Work Rules were not drafted by a lawyer and not bargained over individually but simply were adopted from those used at another plant. He urged that they be given a practical interpretation and I attempt to do so.

Certainly, the phrase arrest and conviction was used to distinguish mere arrest from actual guilt. Concededly, use of the word conviction, alone, would have avoided any confusion. Moreover, the drafter may have wished to distinguish the case of an employee who exhibits a spirit of cooperation and turns himself in from that of the employee who remains unregenerate to the bitter end. After all is said and done, anyone who has ever participated in negotiating and drafting a collective bargaining contract knows full well that agreements tend to embody generalities, not to spell out minute details. I would be very surprised if arrested and convicted was meant to convey any notion other than actually convicted, not merely arrested, and I give it such an interpretation. Otherwise, the employee who murders a coworker and turns himself in would get off on a technicality, and, as stated, we are here to avoid technicalities. Grievant pleaded guilty to a felony, the judge found him guilty of a felony, and, therefore, he violated Work Rule 9. The other procedural issue concerns an alleged denial of Union representation. In its Prepared Opening Statement, the Union claimed that when Grievant entered the Industrial Relations Manager's office and saw both the Manager and the Assistant Plant Superintendent, he realized that the hour of reckoning was at hand and immediately asked to confer first with a

particular member of the Executive Committee and then, after being informed that the Committeeman was not at work that day, with a nonCommitteeman, which request was denied. See CBA Sec. 20.0. In support of its position, the Union cites NLRB v Weingarten, 420 US 251 (1975), for the proposition that it is an unfair labor practice to deny union representation to an employee during a company interrogation. However, at the hearing, Grievant testified that his request did not come until after he was handed his discharge, and both the Manager and Assistant Superintendent denied that Grievant made the request. The relevant portions of the CBA are the following: The Union shall select from among its members a Committee of three (3) members who are employees of the Company, which is hereby designated and shall be known as the Executive Committee. This Committee shall be recognized as the authority for taking up all grievances and other matters with the Company and exercising such further rights and powers as are specifically given to it by the terms of this agreement. CBA Sec 20.0. In the event an employee is discharged, he shall be given a plain and logical reason for his dismissal, in writing, and a copy given to a member of the Executive Committee within one (1) working day. At the request of the employee, a fifteen (15) minute conference with a Union representative will be granted before he is required to leave the premises. CBA Sec. 20.7. The express terms of the CBA provide only that the employee be given a written reason for his discharge, copy to Executive Committee within one working day. Plainly, no Committeeman is required to be present

at the time the employee is handed his discharge papers. Further, absolutely nothing requires that the 15-minute conference precede the discharge. Finally, it is undisputed that Grievant in fact conferred with the Shop Steward for the full 15 minutes allowed, regardless of whether Grievant asked to see the Steward, the Company summoned the Steward on its own initiative, or Grievant just happened to run into the Steward on his way out. I simply am not convinced that there is any real issue regarding Union representation in this matter. Indeed, the Union admits as much in its Prepared Opening Statement when it writes: Clearly in this instance the Company was not conducting an investigation of the matter, but had predetermined the discharge of [Grievant ]. Id., p 4. The real issue in this arbitration is whether the Company gave Grievant a plain and logical reason for his dismissal (CBA Sec 20.7), after having formed a reasoned judgment of the seriousness of the offense and other relevant factors (Work Rules, p 1). The Work Rules The Work Rules are part and parcel of the CBA. See Art 19, p 22. They provide in pertinent part: Violation of any of the following will subject the employee to immediate suspension and final disciplinary action up to and including discharge (depending upon Management's judgment of the seriousness of the offense and other relevant factors).


Reporting for work or working under the influence of alcohol or illegal drugs. Possession of or drinking of or use of liquors, alcoholic beverages, or illegal drugs on Company property. Fighting or agitating a fight on Company property. Assaulting, threatening, intimidating, coercing, or interfering with employees or supervision on Company property. Unauthorized possession of firearms, explosives, or dangerous weapons of any kind on Company property. Theft of property of employees or of the Company or in the Company's custody. Deliberate destruction or defacing of Company property, tools, equipment, property of employees or property in the Company's custody in any manner. Damaging or permitting Company property or equipment to become damaged through carelessness or indifference. Refusal to obey reasonable orders of foreman or other supervision. Arrest and conviction of felony charge. Participation in unauthorized work stoppages. Unauthorized use or operation of machines, tools, or equipment Falsify Personnel or other Company records including employment applications. Act in an immoral or indecent manner on Company premises. Sleeping during working hours. supplied). JX 2, pp 1-2 (emphasis

2. 3.






9. 10. 11. 12.

13. 14.

The first thing to be noted is that there are obvious degrees of


violation of each of these 14 Work Rules. For example, under (1), an employee might merely have liquor on his breath or he might be dead drunk; he might possess only 3.2% beer or he might possess heroin; he might merely be sullen or he might be boisterous and disruptive. Under (4), he might possess a Beretta or he might possess an Uzi; the firearm might be concealed in his locker or he might point it at a coworker. Under (13), he might pat a secretary on the buttocks or he might expose himself; the conduct might take place in a secluded storage room or in a crowded hallway. Under (14), he might fall asleep from working long hours or from partying into the wee hours of the morning. In each and every category, there obviously are varying degrees of violation and different circumstances under which violations may occur. Moreover, all 14 Rules are listed under the same qualifying paragraph, which explains that Management will form a judgment of the seriousness of the offense and other relevant factors as to a [v]iolation of any of the following (emphasis supplied). Based upon these considerations, it is clear that Management cannot adopt a per se rule against violations in any category but rather must evaluate the seriousness of violations in each any every category, including felonies. Let us proceed to evaluate Management's action in the matter at hand, in light of the express requirements of the CBA.


The Crime In the discharge paper given Grievant July 9, 1987, the Company stated only that Grievant was being discharged for conviction of a felony, without any mention whatsoever of the particular felony committed. The company reiterated its position in its Pre-Hearing Brief dated May 31, 1988, although it did there describe the crime as a third degree felony. See also Post Hearing Brief for Company, dated 6/28/88, par 1. In this the first instance of interpretation and application of Work Rule 9, the Company in effect announced and followed a per se rule against the commission of any felony, irrespective of its seriousness and regardless of the circumstances under which it was committed. Indeed, the arbitrator left the hearing without any information about the crime other than the cursory description contained in the court's Journal Entry (CX 2): Ohio Revised Code Section 2907.05(A)(3), Gross Sexual Imposition, a felony of the third degree. In almost a sense of exasperation over the virtually complete lack of information about the crime, the arbitrator got the parties to stipulate that the crime, whatever it was, had nothing to do with the workplace. As previously noted, before settling upon an appropriate disciplinary action, Management expressly is required by the Work Rules to form a judgment of the seriousness of the offense and other relevant factors. Just


as in the case of arrest and conviction, we strive to give judgment of the seriousness of the offense and other relevant factors a reasonable and practical interpretation. Judgment means just that - a reasoned, business decision made after an objective investigation of the facts and a conscientious consideration of applicable laws - not a reflex reaction based upon whim, caprice, bias, prejudice, or moralizing. It appears that the Company conducted little or no investigation into the matter, beyond contacting the County Prosecutor. We do not even know what, if anything, the Prosecutor told the Company about the crime. When Grievant pleased guilty, he was concerned about possible employment ramifications and discussed the matter with a member of the Executive Committee, who advised him to approach the Plant Superintendent about a meeting, which he did. The Committeeman also approached the Superintendent about a meeting. For reasons unexplained beyond the Industrial Relations Manager's remark that he felt no need for discussion, no meeting ever materialized. The Company is correct, technically speaking, when it asserts that it is not required to meet with an employee or the Union during a disciplinary investigation. It may, indeed, conduct its own good faith investigation, quite independently of the employee and Union. However, where, as here, there is


little evidence of any investigation, the Company's failure to meet with Grievant or the Union despite repeated requests serves to bolster the conclusion that the Company failed to make a reasoned judgment of the seriousness of the offense and other relevant factors. The sheer alacrity with which Grievant was discharged, as soon as the Company received the Journal Entry, strongly suggest that his firing was a foregone conclusion. A lack of independent judgment led to the reinstatement of a postal worker who admitted to aggravated criminal sexual abuse of a minor, his adopted daughter, in Nat'l Rural Letter Carriers Assoc v USPS, 625 F Supp 1527 (D DC, 1986). The court explained: In his May 27, 1985, Opinion and Award, the arbitrator concluded that the USPS violated Article 16 of the National Agreement because the branch manager of the Bartonville, Illinois office made no independent judgment and gave no consideration to the proper penalty for the grievant's actions but simply accepted the recommendations made to him by the Management Sectional Center without any independent evaluation. Upon the basis of this procedural violation, the arbitrator ordered Mr. Schwartz reinstated without back pay. Id. at 1528. Federal Labor-Management Relations Law The law regarding an employer's right to discharge an employee on the basis of conduct outside the workplace is stated in Elkouri & Elkouri, How Arbitration Works (BNA 1973) at 616-617: The right of management to discharge an employee for conduct away from the plant depends upon the effect of that conduct upon plant

operations. In this regard, Arbitrator Louis C. Kesselman explained in one case: The Arbitrator finds no basis in the contact or in American industrial practice to justify a discharge for misconduct away from the place of work unless: "1) "2) behavior harms Company's reputation or product *** behavior renders employee unable to perform his duties or appear at work, in which case the discharge would be used upon inefficiency or excessive absenteeism *** behavior leads to refusal, reluctance or inability of other employees to work with him ***. Citing W E Caldwell Co, 28 LA 434, 436-437 (1957).


Arbitrator D. Emmett Ferguson also spoke of the extent to which management may consider conduct away from the plant as the basis for discharge: * * * While it is true that the employer does not [by virtue of the employment relationship] become the guardian of the employee's every personal action and does not exercise parental control, it is equally true that in those areas having to do with the employer's business, the employer has the right to terminate the relationship if the employee's wrongful actions injuriously affect the business. The connection between the fact which occur and the extent to which the business is affected must be reasonable and discernible. They must be such as could logically be expected to cause some result in the employer's affairs. Each case must be measured on its own merits. Citing Inland Container Corp, 28 LA 312, 314 (1957). Another arbitrator also stressed that the effect of the employee's outside activity on the employer's business must be reasonably discernible, mere speculation as to adverse effect upon the business not sufficing. Citing Allied Supermarkets, Inc, 41 LA 713, 714-715 (1963).


The foregoing principles have been applied in a number of arbitrations involving what often are termed crimes of moral turpitude. In Armco Steel Corp, 43 LA 977 (1964), an Ohio arbitration, the employee pleaded guilty to indecent liberties with a nine year old girl in Butler County, Ohio, and served five months and six days of a one year sentence for Felonious Assault under ORC Sec 2903.01. In ordering the employee reinstated, the arbitrator reasoned as follows: I believe the question of reinstatement must be decided in the light of a variety of factors, including (1) the effect of knowledge of the grievant's act and conviction and prison record upon the Company's general plant operations, efficiency and plant morale, (2) the extent to which knowledge of his employment and record reaches outside the plant, and the effect thereof upon the Company's reputation and business, and (3) the grievant's past history with the employer and the reasonable expectations with respect to his future performance. The nature of the offense and imprisonment is important only in considering its effect upon the Company. Having been punished by the state, there is no valid reason for the Company to inflict a second penalty merely as such. The Company's primary concern should be with the effect upon the Company of any retention of the grievant in employment by the Company. There was no evidence in the present case from either side to show how the grievant would be regarded or treated by the other employees if he were returned to employment, nor what effect such employment would have upon plant morale, or outside the plant upon the reputation or goodwill of the Company. The fact that the grievant had been a satisfactory employee for almost 16 years is some indication that he could continue to be such. No one yet knows nor can predict what effect his conviction, hospitalization, and imprisonment may have upon him personally in relation to his work at the plant.


The fact that the grievant had been a factory worker in a Fabricating Plant should tend to minimize any adverse effect upon the morale or efficiency of other employees. And, unlike a clerk in a retail toy shop for example, his employment in the Fabricating Plant where he is not in contact with the public should tend to avoid adverse outside reaction against the Company. 43 LA at 980-981. In the matter before me, Grievant has been with the Company since 1978. The Assistant Plant Superintendent described Grievant as a capable young man who does a good job (when he wants to) and stated that he harbors no bias against Grievant. Grievant's work record is above average, although his attendance record is below average. Aside from vague testimony that three coworkers expressed to Management some disgust with Grievant because of the nature of the crime (and none was called to testify), there was no evidence that Grievant's return to work will be disruptive. Indeed, there was no evidence that anyone, other than obviously Grievant himself, knows the true nature of the crime - certainly the arbitrator does not.1 There was no evidence that Grievant's conduct put

In its Post Hearing Brief, dated 6/28/88, the Company alleges that Grievant was convicted of raping a little eight year old girl, an act that would be extremely repugnant to most members of our community and certainly an act that could not be condoned by the company. When other employees learned of [Grievant's] conviction from an article that appeared in the Bryan Times on June 18, 1987 a number of them brought the fact to the attention of management and said that they shouldn't be forced to work with a baby raper. Id., p 1. It is not uncommon for parties to assert in briefs facts that are undisputed and unobjectionable. Indeed, the arbitrator specifically requested that the parties supplement the record on straightforward points, such as the date of the fourth step grievance meeting. However, the interjection of controversial material, without affording the opposing party the opportunity to object, cross-examine or rebut, manifestly is violative of fundamental procedural due process rights, and so must be discounted in its entirety. The failure of both parties to supply any information at the hearing itself about the crime is taken as an indication that it will have virtually no disruptive effect in the workplace. It seems unlikely that a


the Company's reputation at risk. The Company manufactures, and Grievant assembles, heating and cooling equipment, and it is singularly implausible that a potential customer would refrain from purchasing a furnace or air conditioner because of the private life of an assembly line worker. In Babcock & Wilcox Co, 43 LA 242 (1964), the employee, a laborer in a steel plant, pleaded guilty to Contributing to the Delinquency of a Minor, a misdemeanor under Pennsylvania law, for which he served approximately 60 days of a 6 month jail sentence. The employee was 19 and married when he met Susan, aged 13. The single instance of impropriety took place in broad daylight in the employee's car. In ordering the employee reinstated, the arbitrator wrote: The decision of each case must depend on its own special facts. The essential test is whether a direct relationship exists between the improper off duty conduct and the employment relationship. If an offense occurs off the plant premises and outside of working hours, and it is not shown to have any impact on the employment relationship, discharge of the employee involved would not be justified under a contract provision which requires just cause for dismissal. Management has no authority to punish every act of immoral conduct in the community, merely because an employee is involved. The police power of the State is vested in designated public officials. * * * Even if Grievant's conduct is viewed in its most undesirable light, there is no relationship between the offense and Grievant's status as an employee. Grievant did not tend to corrupt the moral of any employee of the Company. There is no reason why any fellow employee would
matter, which is not discussed at the very place and time proper for discussion, will be discussed where and when inappropriate.


have any reluctance to continue working with Grievant. The Plant Rule which prohibits Conduct which violates the common decency or morality of the community is reasonable and enforceable so long as it is applied to conduct which directly relates to the employeremployee relationship. This Rule cannot authorize the company to punish off duty conduct of employees who violate the criminal code of the Commonwealth, unless such infractions are related to the business of the Company. The evidence fails to prove any relationship between this unsavory incident in the Grievant's private life and his usefulness as an employee. 43 LA at 244. The clerk typist in Social Security Adm, 80 LA 725 (1983) was guilty of two criminal sexual infractions against minors, one as young as 7. Although the arbitrator acknowledged that in certain egregious

circumstances * * * a presumption of nexus [between employee misconduct and harm to employer] may rise from the nature and gravity of the misconduct, the arbitrator was unable to credit the employer's speculation about the employee's designs on student trainees and disabled coworkers. In the matter before me, the Company is not operating a child care center, nursery school, summer camp, or any other business from the nature of which the arbitrator could presume a rational nexus between the commission of Gross Sexual Imposition and negative ramifications for the Company's operations. All this is hardly to say that an employee may never be fired for off duty misconduct. In Gas Service Co, 39 LA 1025 (1962), the employee's job as an installer of gas appliances took him into customers homes where he

frequently worked alone. A stabbing incident prompted an investigation of several weeks, during which the employer, discovered that the employee frequented a [h]angout for pimps, prostitutes, dope peddlers, petty thieves, burglars, narcotic pushers and drunks, was [a]n associate of disreputable characters, some with police records, preferred the companionship of * * * women of low or no moral standards whom he was known to treat harshly, sometimes violently, patronized neighborhood taverns of marginal reputations, and was [a] sporadic but uncaught Sunday bootlegger with a 6-year police record of 16 arrests. In upholding the employee's discharge, the arbitrator concluded: Viewed in its totality, Grievant's manner of living during leisure hours defies scavenging. Without raking over all the sordid details, his activities had a direct bearing on the job he performed daily, on plant discipline because fellow workers knew him for what he was when not on duty. While the Company failed to prove that he is emotionally unstable, the evidence was overwhelming that, in the context of its obligations to customers, he was a potentially unsafe employee and therefore a bad industrial risk, not only by reason of the implications emerging from his associations with police characters capable of taking advantage of information about customers homes inadvertently lipped during an indiscreet moment, but also by reason of his contempt for minimum standards of acceptable social behavior. On becoming knowledgeable, the Company had to terminate his employment - if not out of self-respect or self-protection, then in the cause of maintaining good industrial and customer relations. It could not have done otherwise in the circumstances. 39 LA at 1028-1029. In the matter before me, the Company conducted nothing like the


exhaustive investigation in Gas Service and uncovered nothing even remotely resembling the sordid circumstances unearthed there. Moreover, Grievant does not go alone to customers homes but remains in the plant and under Company supervision. Although the employee in Robertshaw Controls Co and United Steelworkers, Local 1163, 64-2 ARB 8748 (1964) worked in a machine shop, he confessed to sodomizing Boy Scouts, some of whom were relatives of company employees. In sustaining discharge, the arbitrator wrote: Each case must depend to a large extent on its own facts. Under the circumstances here present, this community of about 1200 persons and the Company, which is the largest employer in the area, are closely interwoven. A direct relationship exists between these criminal acts and the business of the employer. The off-duty conduct of this Grievant cannot be kept separate from the day-to-day working environment at the Plant, because the same families are involved. A business enterprise by its nature requires collaboration, accord and reasonable harmony among employees. The technical and administrative sides of an enterprise cannot function correctly if the human side of the business is disrupted with conflict. Families do not want their sons to seek or retain employment in a company where an employee of mature years is a convicted felon who has violated public morals and decency. Few families would permit a young son, after he has completed High School, to start his vocational apprenticeship in a shop where he is subjected to the possible influence of an employee such as this convicted sodomist. 64-2 ARB at 5613. In the matter before me, the parties stipulated that Grievant's conduct was unrelated to the workplace. Moreover, Grievant has made progress toward rehabilitation, unlike the pedophile in Robertshaw, whose lack of


progress concerned the arbitrator. 64-2 ARB at 5614. Here, Grievant's parole officer reported: [Grievant] was placed on probation by the Williams County Court of Common Pleas on 12-7-87 and since that time has been under my supervision. To date [6-2-88], [Grievant] has been cooperative in every way, he has reported as instructed, attended professional counseling, secured his own employment and not been involved in any further criminal activity to the best of my knowledge. We are currently working with [Grievant] towards the reuniting of his family, a goal set by both [Grievant] and all family members. In addition, Grievant testified personally at the arbitration hearing and appeared contrite and repentant. Finally, discharge for incest with the employee's daughter was upheld in Lone Star Gas Co, 56 LA 1221 (1971). That arbitration can be distinguished on the basis of the arbitrator's willingness to impose different standards for small towns (* * * Gainesville is a relatively small city. This Arbitrator believes that his decision could possibly be different if this incident had occurred in a different environment.) and to interject his own moral views into the matter (It is impossible for the Arbitrator not to consider the Grievant's conviction for the crime of incest * * *.). On the first point, absolutely no evidence whatsoever was presented about the size of Bryan. Cf. Robertshaw, 64-2 ARB at 5612. Nevertheless, the parties must have anticipated that the arbitrator would form some impression of the community, as they gave him a map and directions which

required him to drive through and across town in order to reach the hearing site. An arbitrator may in proper circumstances draw upon his own observations. Bernhardt v Polygraphic Co of America, 350 US 198, 203 & n 4 (1956). In this matter, I respectfully decline to do so, because I am convinced that the character of rural America is changing under the influence of modern telecommunications, especially cable TV and satellite dishes, and I hesitate to draw conclusions about society in a state of transition. Small towns no longer are synonymous with small minds, and I decline to attribute heightened moral sensitivity, and certainly not vindictiveness, provinciality or parochialism, to a community, in the absence of convincing evidence. Moreover, in this case, Bryan is not far removed from Toledo, where a local comedian is fond of touting Gun & Whiskey Night at the local ballpark. As a result, Bryan may lack the bucolic innocence of a town isolated on the plains of Nebraska. On the second distinguishing characteristic of Lone Star, once again I emphasize that I do not know what crime Grievant committed. ORCA Sec. 2907.05 provides in pertinent part: (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons, to have sexual contact when any of the following apply: * * * (3) The other person, or one of the other persons, is less than thirteen

years of age, whether or not the offender knows the age of such person. (B) Whoever violates this section is guilty of gross sexual imposition. * * * Violation of division (A)(3) of this section is a felony of the third degree. This is as much as I know. Even if I knew the sordid details, I would be disinclined to let my own feeling govern. Arbitrators are hired to make legal/business judgments, nor moral ones. See Nat'l Rural Letter Carriers, 625 F Supp at 1530. Presumably if the parties desired the latter, they would have hired a priest. In any event, the People of the State of Ohio, through their duly elected officials, have made whatever judgment is to be made about the gravity of Grievant's offense, and it is my duty to judge only whether the Company has borne its burden of proving the requisite work related nexus. Burden of Proof In general, the burden is on the employer to prove justification for discharge. Hill & Sinicropi, Evidence in Arbitration (BNA 1987) at 40; Elkouri & Elkouri, How Arbitration Works (BNA 1973) at 621. In particular, in the case of discharge for misconduct outside the workplace, the burden is on the employer to show how it is adversely affected by the conduct at issue. The requisite quantum of proof is not great - obviously, an employer is not required to parade customers and civic leaders before the

arbitrator, lest the very harm which the employer would hope to avoid be inflicted in the process. However, it must appear on the basis of such evidence as reasonably can be adduced and common logic that there is a nexus between the misconduct and the workplace. Just because the Company failed to carry its burden, it does not follow that the Company's actions were wholly unjustified. The Work Rules provide for the immediate suspension of an employee who violates any of the 14 enumerated Rules, including Number 9, conviction of a felony. It cannot be seriously disputed that Grievant violated Work Rule 9 and hence validly could have been suspended. Moreover, the Company was entitled to take a reasonable period of time to make an investigation into Grievant's misconduct. In the case of the commission of a felony, it is not unreasonable for an employer to await a pre-sentencing report or even sentencing itself, before making a final decision about disciplinary action. See Lone Star, 56 LA at 1226-1227. In this case, sentencing did not take place until August 24, 1987. Furthermore, the Union itself asked that the grievance procedure be put on hold while it consulted legal counsel. Thus, the very earliest that the Company could be charged with suspending Grievant overly long was January 14, 1988, by which time he was out of prison.


The irony of the Company's position is that it easily could have avoided becoming embroiled in this controversy over Grievant's moral character simply by waiting until Grievant was thrown into jail and then firing him for unexcused absences, under express authority of other provisions of the Work Rules. Such a strategy in dealing with criminal conduct is well known. See Elkouri & Elkouri, How Arbitration Works (BNA 1973) at 617; Lone Star, 56 LA at 1226-1227. Instead, the Company elected to play the game of moralizing over Grievant's off duty misconduct and hence must be held to the rules of that game. Even so, it is difficult to see how Grievant suffered any cognizable economic damage before January 14, 1988, since, if the Company had acted correctly under Rule 9, it immediately would have suspended him on July 9, 1987. Remedy Grievant seeks back pay between July 9, 1987 and August 24, 1987, and from January 14, 1988 until reinstatement. As pointed out, he is not entitled to back pay before January 14, 1988. All arbitrators, even those who have ordered reinstatement, have recoiled at the idea of awarding back pay to an employee convicted of a crime of moral turpitude. Armco Steel, 43 LA at 980; Social Security, 80 LA at 729-730; Nat'l Rural Letter Carriers, 625 F Supp at 1528; Babcock & Wilcox, 43 LA at 244. Grievant's acceptance by


the Company and his reintegration back into the workforce would not be facilitated by an award of back pay. Moreover, Grievant has been employed elsewhere, and so that any real loss of income is somewhat problematical. Grievant should be reinstated without loss of seniority, but without back pay. AWARD The grievance is sustained in part and denied in part, as more particularly set forth above.

DATED: July 7, 1988

______________________ E. Frank Cornelius