THE STEWARD’S JOB often resembles work done by an attorney. A member feels wronged, so he seeks the advice of the steward, who investigates, finds contract language that may have been violated or some other basis for a formal grievance, attempts to negotiate a settlement, and if no settlement is forthcoming, takes the question before an arbitrator for a binding ruling.
That sounds a lot like what a civil attorney does. And stewards sometimes find they can benefit from knowing some of the things an attorney relies on: identifying an issue, constructing a formal argument, writing letters, preparing and questioning witnesses, and even complying with the rules for presenting evidence in a formal hearing.
Fortunately, though, the grievance procedure does not involve problems that hinge on the steward’s knowledge of legal technicalities and a vast array of local ordinances, state and federal laws, judicial rulings, and precedents. Grievances are more likely to hinge on a concept usually referred to as the “reasonable person standard.”
The reasonable person standard plays a role in legal proceedings as well. Usually in cases where a person engages in conduct that is not illegal, but which results in some kind of injury to someone else. The first known instance of its application in English law is a good example of how it works.
In the early 1800s, a farmer stacked hay on the property he rented in an unsafe way. His landlord warned him that the way he was stacking the hay could result in spontaneous ignition, but the renter ignored the warnings. Eventually the hay did ignite. The fire burned down the renter’s barns and stable and then spread to the landlord’s two cottages on the adjacent property. The landlord sued.
The defendant’s attorneys argued that no law barred the defendant from stacking hay the way he did, and he acted in good faith, stacking the hay to the best of his knowledge and ability, so he should not be held responsible. But the court ruled that the defendant was to blame because he was obliged to act “such as a man of ordinary prudence” would have acted. In other words, a reasonably prudent man would have been more careful, so the defendant was guilty of negligence.
The reasonable man standard finds its way into the grievance procedure in a number of different situations. Company rules are required to be reasonable. Workers’ actions on the job are subject to being characterized as reasonable or unreasonable. Arbitrators use the reasonable person standard when evaluating interpretations of contract language. Disciplinary actions can be examined using this standard.
The reasonable person standard is useful because it is relatively objective but does not require everything to be spelled out. You may not know how to say what a “reasonable” action is in a given situation, but you know it when you see it.
Let’s examine one scenario and see how we can use the reasonable person standard to our advantage.
SCENARIO: End of Shift Insubordination
JOHN DOE IS coming to the end of a very difficult shift when his supervisor tells him to take on a new task. The task won’t take long to complete, but John is tired and in order to complete the task, he’ll need to go get a tool he doesn’t have with him.
John says to his supervisor, “I am beat. Tired as I am and as close as we are to the end of the shift, I don’t think I’ll have time to get to the tool room and get back here quick enough to get it done before quitting time.”
The supervisor asks, “Are you saying you won’t do it?”
John: “I’m saying it probably won’t get done today.”
Is this member being insubordinate?
The question of whether this is insubordination will probably end up coming down to an application of the reasonable person standard. Would a reasonable person consider the worker’s response to be a refusal to do the work? Would a reasonable person consider the supervisor’s response to be an overreaction?
In the give and take of the workplace, employees sometimes try to get their supervisors to do the work in a slightly different way. Merely suggesting an alternative is not insubordination. For most people — and that includes arbitrators — this situation comes down to the supervisor’s response.
A good response — a reasonable response — would be to take the worker’s concerns under consideration, but let him know the work needs to be done. The supervisor might ask, “What can we do to get this done?” He might suggest the employee take a brief rest and then do the task.
If he just says, “Do the job now or I’ll write you up for insubordination,” his actions are not going to look reasonable to a third party — such as an arbitrator.
In the scenario above, you can see that each party’s choice of words is crucial to whether we perceive their action as reasonable or unreasonable. For example, what if the worker had simply said, “I’m not going to do it. I’m tired and it’s nearly quitting time.”
Suddenly the question of who is being reasonable is put in a different light.
The reasonable person standard in discipline cases
ONE AREA WHERE the reasonable person standard gets used a lot is in discipline cases. If we cannot get the charge dismissed, we try to negotiate a lesser penalty than the company wants to impose. How successful our argument is usually rests on our ability to get the company to adhere to what we believe is reasonable.
But the reasonable person standard gets cloudy when we are determining appropriate penalties. The person being disciplined has an entirely different attitude about the appropriateness of the penalty than the person dishing out the punishment. Regardless of how you or your grievant feels about the specific penalty, the arbitrator will most likely apply the reasonable person standard, and you may not be pleased with the result.
A recent conference of the Labor Arbitration Institute provides an excellent example. On one panel, five experienced labor arbitrators discussed an insubordination case. The penalty was a 3-day suspension, and the panel debated whether that was reasonable.
All five of the arbitrators upheld the 3-day suspension for the insubordination, despite the fact that every one of them said the penalty was harsher than what they would have imposed in the same situation.
Each arbitrator had a slightly different rationale for her or his ruling, but they all agreed on the basic premise. The penalty was harsh, but the arbitrator must have a very good reason to lower a penalty. It is not the job of the arbitrator to bend every company to his or her standard. It is enough to hold them to a standard that is reasonable in today’s workplace. If the penalty happens to fall at the outer limits of what might properly be called reasonable, that’s unfortunate for the grievant. A penalty will generally be lowered only when the arbitrator deems it to be clearly unreasonable in the given situation.
Unions often feel obliged to take what they consider to be unreasonable penalties to arbitration, even when they realize the facts point toward the guilt of the grievant. There’s nothing wrong with trying to get the penalty reduced, but if you do, keep in mind that the union’s burden becomes very heavy in such a situation. You need to convince the arbitrator not only that the penalty is harsh, but also that it is so harsh no reasonable person would have imposed it.
When you consider that some reasonable people spank their children while other reasonable people believe that to be a mild form of child abuse, or that some reasonable people support the death penalty while others oppose it, you begin to see that the term “reasonable discipline” covers a lot of territory.
The reasonable person standard is an attempt to provide an objective yardstick, but that yardstick can never be entirely objective. When you use this standard to make your case, you need to appeal to more than just “gut” feelings. Referring to how similar cases have been handled or using the results of opinion polls might help the company (or the arbitrator) see that your remedy is closer to what most people would consider appropriate.
And if you can’t find similar cases or opinion polls that support your position, you’ll need to consider the unpleasant possibility that maybe you are the one being unreasonable.