Labor & Employment Law Daily Wrap Up, NAA CORNER—Ask the Arbitrator, (Nov 5, 2025)

By Andrea L. Dooley, NAA Member

Labor arbitrators are often confronted with unique situations that can stimulate useful discussion for practitioners who want insight into how arbitrators think about cases.

In this new column, Ask The Arbitrator, we invite labor arbitrators to share their perspectives on a single case or aspect of a case.

One of our colleagues has posed the following hypothetical situation, and we’ve invited three arbitrators to provide their viewpoints. The following case was presented to the following National Academy of Arbitrators members: Stephen Raymond, a labor arbitrator from Ontario, Canada; Arnold Zack, a labor arbitrator from Massachusetts; and Doyle O’Connor, a labor arbitrator from Illinois.

The Captain and The Cello

The aircraft captain refused to permit a passenger to bring his cello into the cabin although the requisite ticket and seat reservation had been bought for it. The airport station manager was called and said the cello was, per tradition, to be strapped into the front row window seat, but the Captain refused, saying he had heard of another such cello having come unstrapped during turbulence, throwing it around the cabin and causing passenger injuries. The Captain led the passenger, a noted cellist, and his instrument out onto the tarmac to the cargo portion of the plane to show the passenger where the cello could be safely stored for the flight. The Captain, long tenured and with a clean disciplinary record, refused to fly with the cello in the cabin. The cellist acquiesced to the cargo placement and the flight went out three hours late. The pilot was later terminated for insubordination and violating security rules when he allowed an unauthorized person onto the tarmac.

a. Would it make any difference if the cello was a Stradivarius and the passenger a world-renowned cellist?

Stephen Raymond: None at all; the issue is the violation of workplace rules or policies, not who the customer is or how expensive is the chattel.

Arnold Zack: No, the Captain was disciplined for security violation, irrespective of the violin’s worth or cellist’s reputation.

Doyle O’Connor: Would it make a difference if the passenger was a Kardashian with a valuable antique? No. As for it being a Stradivarius—the cellist did acquiesce in placing it in the cargo hold after reviewing the option—which suggests that cargo was not an entirely unreasonable placement.

b. Would your decision be based on the Captain's insubordination in not placing the cello in a passenger seat, or merely on the basis of the tarmac violation?

SR: It would be based on the grounds in the termination letter. Only in a very rare circumstance would I let the employer rely on anything else!

AZ: My decision would be solely based on tarmac violation.

DO: Typically, airplane captains (like ship's captains) have broad discretion and authority over safety in the cabin and their judgment is deferred to. The question of 'insubordination' needs further facts—in particular, how much authority does a Station Manager have over aircraft operation and safety. The facts suggest that the charge is related to allowing an unauthorized person on the tarmac—which sounds like a safety violation and NOT insubordination.

c. How would you rule if the employer argued that violation of ground safety rules and tarmac access had routinely been met with termination?

SR: It is a factor but does not determine the matter. Each case turns on its own facts.

AZ: The initial question is whether the Captain was subject to ANY discipline. If that question is answered in the affirmative, the second question is whether the quantum of discipline (termination) was appropriate. Here, a showing of routine termination for such a violation would support termination assuming it was consistently or universally applied.

DO: If the ground safety rules violations were routinely met with termination (which would not be a surprise) then the discharge should likely be upheld. Further, the violation of a ground safety rule undercuts the Captain's high-ground stance that he was enforcing cabin safety.

d. How would you rule?

SR: I would mediate. Failing resolution, I would need to know a lot more to answer. The testimony of the grievor (the Canadian synonym for grievant) would be very important, particularly the responses on cross-examination.

AZ: I would find that bringing the cellist to the tarmac, if against security rules, would justify the imposition of discipline. As to quantum, unless there was evidence of explicit notice and consistent imposition of termination, I would find that the presence of the Captain, and the expressed goal of showing the cellist secure passage of the cello would not require first offense termination. Rather I would impose a much lighter penalty, perhaps written discipline or a day or two of suspension.

DO: If the facts showed that the Station Manager had clear authority to over-rule the Captain on a cabin safety issue, the Captain loses. If the facts showed routine discharge for ground safety rules, then the Captain loses. If either of the preceding is not absolutely clear, then a long-tenured, good-record Captain likely would not be terminated where he articulated a plausible safety concern.

We invite practitioners who have their own questions to send those hypothetical questions to andrealdooley@gmail.com for possible inclusion in a future column.

About the author. Andrea Dooley has served as an arbitrator for grievances and arbitrations, fact-finding hearings, civil service hearings, mediation, labor-management partnerships, and interest-based bargaining and has authored numerous newsletters and publications.

Companies: National Academy of Arbitrators

MainStory: Arbitration Discharge IndustryNewsTrends