THE ARBITRATION OF FIGHTING CASES

Abstract

This paper reviews published arbitration awards dealing with fighting covering 1980 to 1990 as reported in the Bureau of National Affairs (BNA) and Commerce Clearing House (CCH). It attempts to show arbitral guidelines developed from the case sources. Where disagreement in approach to issues by arbitrators is noted, competing schools of thought are presented The majority of arbitrators define fighting as a physical encounter with the intent of offensively striking another person that must normally occur on company premises. For an employee to be considered acting in self‐defense s/he must have been assaulted by another employee and be of the mind that force is necessary to prevent bodily harm. Moreover, an employee acting in self defense must use only the amount of force necessary to protect himself or herself from danger. The right to discipline for off‐premises fights may be accorded to an employer when the fight is related to disagreements which have had their origins in the work place or is a continuation of a dispute occurring in the plant, or is otherwise clearly work‐related Discipline may also be issued when a supervisor is attacked away from the plant premises. A major factor leading to the mitigation of discipline can occur when both parties to a fight are determined to be equally guilty (i.e., there was no clear provocateur), but one is given a harsher penalty than the other. When assessing penalties imposed for fighting, arbitrators also take into account the length of service and/or the work record of an involved employee. The contrition or lack of contrition by one or both employees may also lead an arbitrator to modify or sustain the degree of the penalty imposed depending on the severity of the altercation. An arbitrator may reduce the degree of discipline based on management's failure to diffuse conditions leading to a fight when these are known in advance, or for inaction to break up a fight before it becomes serious.

Citation

Petersen, D.J. (1991), "THE ARBITRATION OF FIGHTING CASES", International Journal of Conflict Management, Vol. 2 No. 3, pp. 201-215. https://doi.org/10.1108/eb022699