by Barry Goldman
Suppose a cop pulls you over for speeding. What do you think should happen? My guess is you think he should give you a warning and let you off without a ticket. Why? Well, because you will, no doubt, be polite, respectful and contrite (or at least you will attempt to appear to be) and because you are a generally law-abiding citizen, you aren’t drunk, and you are not obviously transporting guns, drugs or kidnapped children.
That’s fine, but now let’s take your personal interest out of it. Suppose a driver gets stopped for speeding. The reason for the stop is that speeding is unsafe. A speeder presents a danger. That danger has nothing to do with whether the driver is polite. Politeness and rudeness are completely beside the point. So how would you want the cop to decide whether or not to write a ticket? What criteria would you want him to use?
How about tribal membership? When I was a kid my world was divided into two tribes. There were long-haired, hippie pot smokers like me on one side and short-haired, beer-drinking cops on the other. It was a simpler time. We made life miserable for each other whenever we got a chance. I suspect none of us today believes that tickets should be issued or not issued based on tribal membership, however delineated. Too much room for mischief. But we also don’t think everyone who gets pulled over should get a ticket. So, if it isn’t politeness, and it isn’t tribal membership, what should the determining factor(s) be?
Previous driving record seems like a promising candidate. But there is something oddly self-perpetuating about driving records. I have a very clean record. I get pulled over for a violation, the cop looks me up, sees my lovely record, and lets me off. Obviously, this is an unusual occurrence for me, and a warning will be sufficient to correct my behavior. You have a crummy record. You get pulled over for the same violation. The cop looks you up, sees your crummy record, and writes you a ticket. Obviously, you are a habitual delinquent, and a mere warning will not be sufficient to correct your behavior.
Let’s change the context. Suppose you are sitting as a labor arbitrator. Everyone agrees the grievant did the bad thing, whatever it was. The employer fired her. The union filed a grievance. You have been called in under the terms of the collective bargaining agreement to determine whether the grievant’s discharge was with “just cause.” The term is not defined.
The employer argues it has the right to establish rules for the workplace, the bad thing the grievant did is against the rules, and it has the right to discharge people who violate the rules. And it argues the bad thing was so bad that a penalty less than discharge would not be proportional to the offense.
The union agrees the bad thing is bad, but it argues mitigating circumstances. The grievant has a long, unbroken record of service to the employer. She has no previous discipline, or at least no discipline for similar offenses. She was under unusual stress in her personal life at the time of the offense. She appears to be genuinely remorseful and promises nothing like this will ever happen again. She is an appealing and sympathetic grievant. What would you do? How would you go about thinking it through? Show your work.
One way is to go with your gut. If you like the grievant, you put her back to work. If you don’t like her, she stays fired.
This may, in fact, be how these decisions are made, but few arbitrators would admit it. The psychology literature establishes rather clearly we tend to like people who are sexually attractive and demographically similar to ourselves. Ugly people get longer prison sentences in the lab and in the field. (See: Survival of the Prettiest: The Science of Beauty by Nancy Etcoff). So we would want to do a bias audit before we pronounce a decision based on whether or not we like the grievant. We would adjust for sexual attractiveness and demographic familiarity and recalculate. Now do you like the grievant? If you do, you reduce her discharge to a suspension.
At the other end of the spectrum might be some kind of a checklist. (See: The Checklist Manifesto: How to Get Things Right by Atul Gawande). We can’t trust our gut, we need a procedure. [The careful reader will have just been gripped by the fear that this piece is about to turn into a discussion of how algorithms and AI are coming for labor arbitration. You can relax. I may be compelled to write that piece at some point in the future, but this is not it.]
What would be included in such a procedure? One suggestion is a review of previous cases. What has this employer done in similar cases in the past? Like cases, it is axiomatic, should be treated alike. That’s true in general, but it’s not the whole story.
If Smith, Jones, Brown, and Green all committed the same offense and none of them got fired, then arguing that the present grievant should not get fired is easy. It’s just an argument from basic fairness. In the more interesting case, Smith, Jones, Brown, and Green did get fired. The union is not asking that this grievant should be treated the same, it is asking that she should be treated differently. It’s arguing that there are sufficient mitigating circumstances so that the usual approach would be unjust. I expect we can agree there are some sets of circumstances in which the ordinary rules should not apply. The question is whether the present case is one of them.
At this point there’s a temptation to say arbitration is more of an art than a science and each case needs to be treated individually, on its own merits, case by case. Maybe. But can’t we do any better than that?
There’s an argument that leniency is the prerogative of the employer. Even if they have the contractual authority to discharge the grievant, the employer may choose not to. But the arbitrator does not have that authority. Arbitrators have the responsibility to see that the punishment fits the crime. That’s one of the elements of just cause. We can reduce a discharge to a suspension, for example, if we find that the discharge was too harsh given all the circumstances. We can’t say “the employer had just cause to discharge the grievant, but I’m putting her back anyway.” What we say instead is, “The employer has shown that the grievant committed an offense for which a penalty is appropriate, but it has failed to show just cause for discharge.”
Back in 1947, Harry Platt, one of the pioneers in the field, provided the following guidance:
To be sure, no standards exist to aid an arbitrator in finding a conclusive answer to such a question and, therefore, perhaps the best he can do is to decide what reasonable men, mindful of the habits and customs of industrial life and of the standards of justice and fair dealing prevalent in the community, ought to have done under similar circumstances and in that light to decide whether the conduct of the discharged employee was defensible and the disciplinary penalty just.
Platt’s bromide has been repeated many times in the ensuing three quarters of a century. It has not noticeably taken on any useful meaning.
I have written both decisions many times. I have written that my hands are tied, the employer has the right to impose discipline, and I have no authority to substitute my judgment for that of the employer unless that decision was arbitrary, capricious, unreasonable or discriminatory. I have also written that the employer’s decision to discharge the grievant, in light of all the circumstances, simply lacks the required proportionality to the offense, and has thus failed to meet the just cause standard.
This is a rather fine hair. I can split it because I am a trained professional. Do not try this at home.
The cop in the squad car and the arbitrator in the labor case have the same problem. We want to do what’s right. We don’t want to write a traffic ticket if a warning will slow the speeder down and prevent an accident. We don’t want to uphold a discharge if the employee is salvageable and a suspension will correct her behavior. But there’s no way to tell.
Ambrose Bierce summed up the situation nicely in his poem A Lacking Factor:
‘You acted unwisely,’ I cried, ‘as you see
By the outcome.’ He calmly eyed me:
‘When choosing the course of my action,’ said he,
‘I had not the outcome to guide me.’