Wade Robison

Commentary On

Whenever one acts, one is acting within a context, and the context may make some options preferable to others when, all things considered, it would be better to do something else completely different. For instance, in European countries many roadways have trees right near the road. These were often planted, among other reasons, to form a canopy over the road, making the road less likely to be covered with snow in the winter and more likely to be cooler in the summer. No doubt accidents happen there too, but the costs of lawsuits to the European equivalent of country road commissions has not been so great, for whatever reason, that European countries have felt moved to remove trees for safety's sake. Indeed, even on heavily travelled roads, the autobahn's of Germany, for instance, trees are often planted in the center between the double lanes of traffic in order, among other things, to prevent traffic lights from shining into the eyes of oncoming drivers.

In addition, though widening roadways is the accepted procedure in this country, whenever a road becomes so heavily travelled that the incidence of traffic accidents increases, it is not necessarily the preferred solution if some things were fundamentally different. More public transportation is available elsewhere, and that can help alleviate traffic congestion, and if Americans were willing to use such transportation, and it were cheap and readily available, such a solution might help. In addition, one can build other roads to help alleviate traffic, another two-lane road taking the place of doubling the lanes on an existing road. But such a solution often produces new problems--other land being condemned, other trees being cut, and so on. In addition, it is probably likely that any state or federal aid available is tied to widening existing roads--tied, that is, to what is the preferred solution in this country--rather than anything innovative.

So Kevin Clearing's problem is that there are few choices available to him given, among other things, the state of the law in this country and the likelihood that someone, going within the speed limit, will crash, and sue, and win a large amount of money from the county. There are enormous disincentives to do anything other than widen the road, and there may be enormous incentives, in the form of support from the state or federal government, to do that. One person cannot change an entire system.

Clearing has been asked to come up with a solution to the traffic problem, and he has. He has come up with one that does not try to change those features of the situation that seem to be causing the difficulties--whatever it is about the drivers and the situation that has caused one fatal accident every year and numerous other accidents, whatever is causing drivers to drive too fast on the road, whatever is causing the increased traffic on the road, whatever it is in the system that produces huge amounts of money to those who are harmed in accidents and successfully sue, and so on.

No doubt other options are available besides widening the road--putting speed bumps in the road to slow the traffic, putting guard rails up to keep traffic within the roadway, increasing police patrols, and so on. Each of these options has its advantages and disadvantages, and perhaps one of them, or some combination of them, would succeed in making the road safer.

The decision is ultimately a decision that must be made by the road commission. They pressed Clearing to come up with a solution, and they presumably must ask him to come up with some alternative: it is not clear, that is, that he can act on his own initiative.

If not, then he must act, if he feels impelled, as a private citizen, and he will have to decide whether to bring before the road commission other options he thinks might help. Deciding that will present some problems, for he might be perceived by the road commission as undermining the recommendation he gave them and so undermining the commission itself. So he ought to ask them how they want him to proceed--if he thinks he can do anything further regarding the issue.

If he can proceed on his own initiative, or if the road commission asks him to proceed, he ought to present the reasons for the original solution provided--the concerns about a lawsuit, and so on--and to present alternatives, with all their attendant problems and benefits. Clearing ought to have originally provided the reasons for whatever solution he thinks is optimal, explaining clearly how he is ranking the various values in conflict here, how, that is, he weighs safety against the concern for the environment represented by the citizens' arguing to save the trees. If he now thinks some other solution may be preferable, he ought to present it, with its attendant benefits and burdens. His obligation, that is, is to further an informed and intelligent dialogue among the interested parties.

It may be that out of that dialogue some alternative solution may emerge. For instance, one easy way to ease the problem caused by crashes is to make it harder for motorists to hit trees, and one way to do that is not to cut down underbrush near the road, as is the preferred option among road commissions throughout the country, but to plant bushes that will absorb the impact of cars, causing minimal damage to them and to their occupants by preventing them from running into something, like a tree, that will not give upon impact. The road would then look far different from how most American roadways look--not cleared verges, with a stand of trees beyond the grass or gravel, but densely planted verges, with bushes close to the roadway. Whether such a dense population of plant life could be maintained in a roadway system that relies so heavily upon salt to clean off ice and snow in the winter is another issue, but the point is not that such planting is the preferred solution, but that making clear the reasons for various alternative solutions can do much to initiate an intelligent and informed dialogue about what ought to be done, about which values ought to be given prominence and which solutions are more likely to preserve those values and cause the least harm to other values at issue.

I

Various forms of questions reflect various assumptions. That this case asks whether Nelson should send the report to Jason implies that the report has not been published in any way and that the question of whether to send the report is Nelson's to answer. If the research had been funded by an outside source, then that source might have to give its permission for the report to be circulated, and if the report had been published, Jason can track it down himself and need not be dependent on Nelson for anything other than, perhaps, the information that the report has been published. So the way the question is posed suggests that the report is Nelson's to do with what he sees fit. If he prefers that others not read it, that is for him to decide.

He certainly has no obligation to send it to Jason even though Jason worked on the project. Jason's leaving the project before the work was completed removes any obligation Nelson might have had.

But it is not obvious that any harm could come from Nelson's sending Jason a copy, and, after all, Nelson is a professor, Jason was his student, both are presumably in the same area, engineering, with Jason going on to graduate school; and so Nelson may properly feel that it would help a former student to give him a copy of the report. One may argue that one never loses a student. They can always ask a professor to write a letter of recommendation, though it may become more and more awkward the older and more removed from college they get, and so it is appropriate for Nelson to continue what part of that relationship he can by encouraging Jason. After all, it is a compliment to have a former student request a copy of something one has worked on, and since, we assume, Jason was one of Nelson's better students (for why else are we to assume he was chosen as student assistant), Nelson may properly feel that Jason would be an asset to the profession and so want to encourage him.

II

If Nelson later discovers that Jason has used the report for his Master's Thesis, he has an obligation to report that--to the advisor listed on the Thesis, to the chair of the Department of the university in which the thesis was given, and to the University itself. He may also have an obligation to report it to whatever legal body is responsible for ethical issues in the profession. Jason is effectively stealing someone else's work, and he has no right to do that--even if, as Nelson indicated, Nelson has no further interest in the report and so does not intend to publish it. In addition to taking Nelson's work, Jason is also misrepresenting that work as his own. He is thus effectively lying to the Department and the University and his advisor there. And, in addition, he is misrepresenting himself as someone capable of doing that sort of work--to the University and to any future employers who see that he got a Masters from that university. He may well be capable of such work, but it is not fair to those who have done the proper work for a masters to represent oneself as having done it and compete with them on an apparently equal footing for honors and jobs.

It is not clear what Nelson could have done to prevent this from happening. He might have put on the Report "Common law copyright" and "Not for publication," but such stamps, even if duplicated at p. 100, as libraries do when they print their names on the books they purchase, would not prevent anyone from typing up the entire report again.

He could also refuse to circulate unpublished papers and reports, citing concerns about having his ideas taken without credit to justify this closed-door policy. What he has to weigh here is whether such a policy properly furthers knowledge. If he indeed did not intend to pursue the subject of the report, then it would have languished in his filing cabinet until he died, then, probably, to be tossed. He worked on the project and may have uncovered something he did not realize he had. Circulating one's unpublished papers has the advantage of helping to ensure that whatever goodies are buried in fact make the light of day. He also has to weigh that consideration, which is a matter of general policy about the point of doing research, against he judgment that Jason might well profit from reading the report. After all, if Jason is now having second thoughts about how he handled himself in that project, then giving him the report to read so that he can see how things turned and thus what he missed out on by not doing a better job in the project may be just what Jason needs to mature further. Cutting him off may be taken as an affront and may be unhelpful in furthering his growth as an engineer and as a person.

It is not obvious what answer one ought to arrive at when going through such a calculation. It is one thing to keep to oneself what papers one has that one is working on and intends to publish. Premature circulation of an idea can work against the dramatic impact of its sudden publication and risks its loss as well. But if one has decided not to pursue a project, it is not obvious that keeping a report on the project to oneself is justifiable. It would be if one knew ahead of time what Jason planned to do, but one does not.

I

Christine should talk with Vernon. There are two different issues that are raised by Vernon's not passing along either the savings in cost of production or the information that the custom made parts are to be made with a different material than XYZ's engineers had originally thought would be necessary.

First, as Christine points out in her original conversation with Vernon, "In most cases the performance will be virtually the same--although some parts might not last quite as long." It is unclear whether there are two problems here, or only one. Christine may be saying both that some of the parts will have a shorter lifetime than they would were they made of the other alloy and that for some of the parts, or -- and this is also unclear -- for some of the features of the parts, the performance will not be the same as it would be for those made with the other alloy. Either all the parts will be used in the same way, but the failure rate will be higher in general (perhaps because the parts are not as strong now), or, perhaps, some of the parts will be used in ways different from other parts, and they will not perform as well as ones made with the other alloy would perform. In short, the parts will be of lesser quality than those ordered, and that diminution in quality will manifest itself either in a shorter lifespan for some of the parts or in decreased performance for some of the parts, or both.

In either event, ABC will be getting an inferior product for its money. One way to come to understand whether anything moral is at issue is to ask whether a change will cause any harm, and ABC will be harmed because it will have to purchase new parts sooner than otherwise, and that will cost them more money, and/or because it will have an inferior product produced with these parts because the performance with them will be inferior to what would have been the performance expected of the part made with the other alloy. So ABC will be harmed by changing the composition of the parts, and anytime harm occurs because of one's actions, one needs to assess whether one ought to act in that way.

One ought not to cause harm unnecessarily, and so one needs a good reason for causing it. Physicians have a good reason to cause pain to patients by inoculating them because the patients are benefited in the long term by being immune from diseases that would cause them more harm. So the question is whether XYZ has a good reason for causing harm to ABC. The answer is that it has a reason, namely, increased profits, but that is not a good reason for causing harm. Christine is right when she thinks that "the customer isn't getting what was promised." If I promise someone something, and then substitute something else, I have broken my promise, and we thus have two harms here -- the harm that comes from breaking one's promise and the harm that comes from causing ABC to spend more in the long run for the custom made parts.

The harm that comes from breaking one's promise may seem a minor harm, but think of what might happen were ABC to discover that the reason the parts it ordered have a shorter lifespan than it thought they would have is that XYZ has substituted something different from what ABC thought it ordered. Not only would ABC have the basis for a legal suit, presumably -- if the order originally included specifications for the alloy to be used--but it also would no longer have any reason to trust XYZ to deliver what was promised. Everything ordered would have to be checked, that would increase ABC's costs, and it might decide that the increased costs of doing business with XYZ were not worth it and might take its business elsewhere. Breaking one's promises often does not cost one much: if no one finds out, and one generally keeps one's promises, then no one will be the wiser. But when one is found out, the cost are usually so high as to outweigh any advantage one may have had from breaking the promise to begin with. So Vernon risks losing ABC as a customer should ABC ever find out that the parts they ordered are not exactly what they got.

But I mentioned that there were two different issues raised by Vernon's actions. The second is perhaps somewhat more problematic because it raises the question, "What is a fair profit?" Is one entitled to charge whatever the market will bear, or should one pass along any savings to one's customers and charge only what gives one a decent profit for one's work? We may bring out the issue more clearly by supposing that XYC's suppliers find a new source for the alloy originally thought necessary and that the price to XYZ is significantly lower than what XYZ had calculated it would be in determining that the final price should be $75 per part. Does XYZ have an obligation to pass onto ABC the savings from their discovery? Suppose that the savings are not, say, $2 per item, but $35 per item. Whereas before XYZ was making a profit of, say, $20 for every $75 item sold, now it is making a profit of $55 for every item. Does it make a difference how much of a profit XYC is making?

This question raises issues that take us far beyond this case, but we can say a few things about it. One is that discovering that one can purchase something at a cheaper price is itself not without cost: one has to hunt in catalogues, presumably, talk to suppliers, make new arrangements, cancel old ones, and so on. So XYZ has incurred some costs in lowering its costs, and it should be entitled to recoup those costs. It thus is not obligated to pass on to ABC all of its savings in purchasing the alloy at a lower cost.

But should, again, ABC ever become aware that XYZ made a profit of $55 on every $75 item--and one must realize that, among others, salespersons talk--then XYZ will get a reputation for gouging. That is, they will become known as a company that will make as much money as they can whenever they can. This will have its effects on their business, for instance. Companies will bargain that much the harder to lower the price, thinking that XYZ will be making enough profit even with a lower price, and XYZ will find itself having to mark up items in order to have a bargaining position. It will thus price itself out of the market for some potential customers, who will see the price and not realize that XYZ is willing to bargain. But even those who bargain with XYZ and come up with a contract will be left not being completely sure that they came up with a good contract. They will still wonder if, perhaps, XYZ has not still made a big profit and will hunt around for other suppliers. So XYZ will perhaps lose customers, who will feel no loyalty to a supplier who will gouge when it can.

So, by all means, Christine ought to talk further with Vernon. He is taking a short-sighted view -- take the profits upfront and do not worry about the potential long-term consequences -- and is causing harm to ABC when that is wrong.

II

If Christine's entire further conversation with Vernon is as reported and all he says is, effectively, that he is just doing good business, then she ought to press the point further. He presumably thinks he is doing "good business" because he is making more money for the company from this contract than he would if he passed along the savings to ABC, but he is making more money only because he is supplying a different product to ABC than was originally contracted for. Whether the contract itself specifies the content of the part or not, it was presumably presumed by both during the negotiations that a particular alloy would be used. Or, to put the point perhaps less contentiously, XYZ presumed it, and ABC would have no reason for thinking any other alloy would be used. It is not good business to cheat a customer, and that is effectively what Vernon is doing.

He is also assuming, without evidence, that ABC will be a satisfied customer. But if the parts are not as long-lived as it thought they would be, and if there is a higher rate of failure in some functions than it would there would be, ABC may well not be a satisfied customer and may look elsewhere for a supplier next time. It is not good business to encourage customers to go elsewhere the next time they have to purchase parts.

III

If the original contract specifies that the parts are made from the alloy originally chosen, then Christine cannot sign a report "verifying that the specifications for the part have been met." They have not been met, and it is her professional obligation to make sure that what is produced is what was contracted for.

In addition, if the original contract is as indicated, then it is probable that Vernon knew that all along. He is thus not just taking advantage of a loophole in the contract by substituting one alloy for another when the contact did not make it clear what was necessary, but clearly breaking the contract in order to increase the profits to the company. So, whereas one might just think him slightly sleazy in trying to wring as much money as he can from the contract, now one must think him criminal in not only breaking the contract himself, but also urging someone else in the firm to do the same--and to cover for him. For if Christine signs the report, Vernon can always claim, in his defense should things come to that, that he just took the word of the engineer here, that she is the professional who ought to know about such matters, and that he is just the salesperson, or whatever, and certainly not professionally competent to make such judgments.

So Christine cannot sign the report. That would break a contract with XYZ, and it would open her to the legal repercussions if XYZ should find out and sue, as they would be entitled to do.

IV

If Vernon is able to get another engineer to sign the report, Christine is in an awkward position because now, should she act further, she will not only get Vernon, but also a fellow engineer in trouble.

But she has an obligation to take the matter higher if for no other reason than that the company may be sued by XYZ. It is not enough morally just to act within the law, but it is always a mistake not to act within the law. One pays in so many ways -- monetarily, by having to pay damages as well as for the original difference in costs, and politically, as it were, by being presented publicly as a company willing to cheat its clients for extra profit.

That a fellow engineer may well be harmed is unfortunate, but if he had a good reason for signing the report, despite the discrepancy, he will give it, and if he did not, it is not up to Christine to protect him when the company as a whole may be harmed by his and Vernon's actions. One is not obligated to protect a fellow profession from his or her own mistakes, and the obligation is especially weakened when others may be harmed by those mistakes. Christine now only has to be concerned about the harm being done to XYZ, but also the harm that may be done to ABC.

In addition, she may be harmed, knowing all this, and yet not acting. We are sometimes in the unfortunate position of coming to know something that necessitates our acting when we would prefer not acting. Seeing a parent abuse a child, for instance, creates a prima facie obligation to do something, and one must at least consider what one ought to do in such a case, perhaps investigating whether the abuse is longstanding or not. Here the harm is clear, and that Christine is no longer in the chain of authorization for its occurrence is not important. What matters now is that she knows it. To prevent harm she must act.

I

If Carl Lawrence is supervisor of the caustic as well as the acid distribution system, then he ought to talk with the plant manager, Kevin Rourke, about why the two systems are different. The main point of the talk ought to be to determine if the caustic system as is safe as it can be, given the differences. It is often easier, as an outsider, to notice differences that might make a difference than it is for someone who has become so familiar with things that he or she no longer notices the details. Too much familiarity may bred not only contempt, but indifference.

But an additional area of concern for Carl is whether there are any written procedures for filling the tanks. If these are standard, they should be. Even if they are not standard normally, but are standard for the acid system, then they should be. For the operating principle here ought to be that distinctions ought not to be made between the two systems without reasons, based on safety, for the differences. The more differences there are, the harder it is to teach those responsible for operating the system about them and the harder it is to make sure that everyone does in a regular way exactly what ought to be done. Establishing a similar set of procedures for both systems has a safety advantage, that is, in making it easier to train those working with the systems, since they will need to learn only one set of procedures, not two, and in making it easier for those using the systems, since they will need to remember only one set of procedures for both, not double check each time they work on each to make sure that they are following the right set of procedures.

That Rick has no problems with the setup, after working there for four years, is some sign that it may not be a serious problem. Carl knows Rick, but not enough about Rick to know how good a judge he is of the safety issues involved. So what Rick says has to be taken with a grain of salt: one worker has not had any difficulties.

II

Carl should tell Kevin Rourke that he has located the problem, that it is now solved, and that he is going to have to look and see what can be done to prevent a reoccurrence. He should certainly acknowledge responsibility for failing to have C-2 checked earlier. He should also make it clear that what is needed is some way to make sure that such failures as his failure to remember that no one was on duty in that section do not occur again.

Identifying Rick as the one who left the valve open is another question. First, Carl does not know that Rick left it open. What he knows is that Rick was assigned that section the previous shift and that no one was assigned it afterwards. He may infer that Rick left the valve open, but though Rick does not remember turning it off, he--Rick--also says, "I can't believe I forgot to turn it off!" For all Carl can know, someone else may have come in and turned it on after Rick turned it off.

Second, even if Rick left it open, it looks as though the caustic distribution system was waiting for a disaster to occur. If we leave doors open when we have pets, the pets are bound to get out sometime or other; if we fail to close cabinet doors when we open them, someone is bound to run into one sooner or later. Similarly, if we have a system which has no fail-safe mechanism so that if a mistake is made, it will automatically correct itself, then accidents are bound to occur. No doubt the person who causes the accident is responsible to some extent. One can tell the person who runs into the cabinet door to watch where they are going. But to hold that person strictly liable ignores what features of the system conspire to make such an accident easy.

So it is not obvious that Rick can be properly blamed here. One does not have enough evidence to convict him in a court of law, for instance, and so one has room for doubt. And, in addition, one has to hold the system partly accountable for making that kind of an accident easy.

So identifying Rick as the one who left the valve open is probably a mistake. The most that Carl ought to say, if asked, is that Rich had the previous shift in that section and that the whole thing needs to be investigated.

III

Kevin should notify those at the wastewater treatment works that some caustic waste had been released, that he is not sure how much because he is not sure when the valve was left open, but that he will deliver enough acid to counter whatever high pH count the caustic waste might cause.

Since the wastewater treatment plant's pH meter is out of service, he should offer to supply one from the company if he has one and can spare it. Without such an offer, the offer of as much acid as necessary is without much substance: the plant will not be able to tell how much is needed.

Kevin ought to do these things just because it is the right thing to do: if the caustic acid were to overwhelm the organisms that such wastewater treatment plants use, then effectively untreated waste would be discharged into the water system of those who depend upon the waste treatment plant to provide them with clean water. And they would be harmed by having contaminated water. So Kevin owes an obligation to those people to make sure that his company does not cause the wastewater treatment plant to harm those who depend upon it.

But there are also very practical reasons for notifying the plant, delivering acid, and so on. There cannot be many plants about that could cause such problems for a wastewater treatment plant, and if something does occur, it is highly likely that the authorities will trace the problem to the company. So the company will get a bad name for polluting the city's water supply and not doing anything to prevent the pollution when it knew that something could be done, and, in addition, it is likely to be sued by citizens and by the city. So its reputation will be harmed, it will be suspected when future incidents occur, and it may have to pay legal costs both to protect itself and to pay damages should those who sue win.

IV

I think that Kevin Rourke did the right thing--despite the costs. The local citizens were spared potential harm to their health through polluted wastewater not properly treated by the plant. The owners and stockholders of Emerson gained the credit of being associated with a company that takes responsibility for its mistakes and tries to correct them, and they also probably saved money since the $60,000 plus (for modifications to the caustic distribution system, and more for the several hundred gallons of wasted caustic, and so on) is likely to be less than the lost to the company from paying lawyers to defend it against law suits, some of which they might well lose. In addition, one can argue that nothing is of more value to a company than its good name. Lose the name and one effectively loses sales that one cannot measure. One will not know how many would have purchased products from the company but for its bad name. So keeping its good name for $60,000 plus is a bargain.

From the standpoint of the wastewater treatment plant, Emerson becomes a good neighbor, one willing to let them know when they may have problems because of something that has happened at the plant. So the plant can be somewhat less vigilant and concerned about Emerson's discharges than it might otherwise be. Emerson's action may put it at a short-term competitive disadvantage vis-a-vis any other similar firms in the area that may make the same products and discharge similar wastes, but the disadvantage is for the short-term only. Any other such firm would be at a competitive advantage only if they released waste and did not bother to help clean it up, but then such a firm would face the same problem that they are likely to be tracked down--and have to pay lawyers, citizens, and the city--and so suffer long-term losses.

V

If Rick Duffy was negligent, Carl should reprimand him. But he should not fire him. There was no rule for what would happen if someone left open the caustic valve. So to penalize Rich for doing that would be to make him subject to a rule that could only come into existence after his failure. That would be unfair. In addition, Carl himself thought there might be a problem with the caustic system, and, as the story has unfolded, he clearly failed to do anything to make it any safer. So he has to share part of the blame here for allowing a system to continue in which such accidents could so easily occur.

The friendship between Carl and Rick is irrelevant here. If we are to assume that Rick was negligent and so deserves some sort of reprimand, Carl cannot rescind the reprimand, or lessen its severity, out of any friendship to Rick. That would be unfair to any others who might be similarly reprimanded, but have the bad luck not to be friends with the supervisor.

VI

Kevin rightly should be concerned. It is puzzling that he himself had not paid any attention to the differences in the two systems and to whether those differences might not cause problems for the plant, but, then, he might respond that is why he hires people like Carl. It is their job, not his, to tell him what the problems are. So he needs to talk to Carl to ask him why nothing was said about the sorts of problems that might come up, to determine what Carl now thinks ought to be done to prevent similar occurrences in the future, and to encourage Carl to talk to him in the future about whatever problems he considers important.

What seems missing in this situation is an open exchange of views between Carl and Kevin, the sort of "Why is this done this way?" and "I'm not sure, but let's figure it out" that may require a change in both Kevin and Carl. Kevin ought to ask himself what it is about him, or the structure of organization in the plant, that would account for Carl's not coming to him about the problem, and he needs to ask Carl what could be done to improve communication between the two of them. If one solves problems by dialogue, one needs to make sure that the conditions that make dialogue possible exist.

VII

Carl in fact does not know for sure that Rick left the valve open, though the evidence certainly points that way, and as has been said, he has to bear part of the responsibility for not pursuing the matter to begin with to change the system so such accidents were less likely to happen. And he ought to tell Kevin that. Firing Rick is not the place to start. They should start by figuring out how to change the system so that if someone forgets to do something, as is bound to happen, nothing untoward occurs. And Carl ought to tell Kevin that as well.

It is also unclear, even if Rick were responsible, that it is appropriate to fire someone for one mistake if, as seems the case here, the past work record is not only clear of any mistakes, but more than adequate. We all make mistakes, and if one mistake were enough to justify firing us, we would no doubt all have been fired from more than one job by now. What is required for such action is a pattern of irresponsibility or stupidity. The pattern need not be of great duration to justify firing in some cases, but it is hard to imagine a situation where a single mistake would be enough to justify firing. Kevin is acting out of anger here, and if he were to apply the principle he is adopting to his own situation, he would find that he should be fired too: after all, he made the mistake of not checking the caustic acid system to be sure that it would not cause problems.

VIII

Carl should say that he is sorry to see Rick forced to leave in such a way and that of course he will write a letter of recommendation. In the letter, there is no need to mention what he suspects Rick did regarding the valve. Again, it is an issue of what standards we are to hold people to. If Carl were to hold Rick to the standard of never making a mistake, then no one would ever get a letter of recommendation from Carl, Carl included. What is important is whether the mistake is part of a pattern of Carl's behavior, or whether it is explicable in such a way that would explain his apparently exemplary work for the four years he worked at the plant. And given Carl's going to school, having a wife who is pregnant, and holding down a full-time job, such a mistake is explicable. That is, it is understandable that someone who is otherwise fully competent and responsible might, under such circumstances, make a mistake. One should not make a judgment about their character, or their capacity to work well, based on that one mistake, but on their basic competence and sense of responsibility.

Of course, one could judge here that Rick is not quite as responsible as he should be. When initially asked about the caustic system, his response was that though he did not have any problems with it, "that's somebody else's concern, not mine." He thus indicated that he was not willing to initiate any act that called for responsibility over matters not obviously of direct concern to him. So if Carl is going to write a letter of recommendation, he should take that initial response into account--just as he should take into account any of Rick's actions that might tell on his character.

The bottom line here is thus that he should mention Rick's apparent mistake only if it is indicative of his character, that from what we know it evidently is not, and that therefore he should not mention it.

IX

If he should not mention the apparent mistake in a letter, he should not mention it over the phone either. The principle is not that one should never say on the phone what was is unwilling to write, but that one should never say on the phone what one had good reasons not to write. Carl had good reasons for not mentioning the apparent mistake in his letter of recommendation, and those good reasons have not changed because the person receiving it has called.

X

Nurrevo ought to inform the wastewater treatment plant of its accident for just the reasons given above for Emerson's informing the plant of its accident. Among other things, it is difficult to keep such things quiet, and should information about the accident get out, Nurrevo would not only have the sorts of problems Pro-Growth would have had, but also the additional problem that people would think that it was trying to piggyback on Emerson's accident--taking advantage of their accident and trying to make it look as though the magnitude of the problem, whatever that was, was entirely Emerson's fault. It is wrong to cheat, and it is even worse to cheat and allow someone else to take the blame for one's cheating.

XI

We find ourselves in many moral problems because we neglected to do something early enough on in a process: a mistake early on sets up a moral complication. Here Andrea should not have accepted, at his word, her superior's remark that Andrea did not have to take care of the problem because "it's all taken care of." She no doubt assumed that he had called the wastewater treatment plant, but she ought to have checked. That would have forced him either to lie to her or to explain to her, as he later did, that Nurrevo was piggybacking on Emerson's problems. She should then have given to Fred Barnes all the reasons we have already given in regard to Emerson's informing the wastewater treatment plant. That is, she should have initiated a discussion with him about what they ought to do, making it clear to him what her concerns were and putting him in a position where he would have to articulate his reasons for doing what he did.

She wonders how far up the organizational ladder she would have to go to find someone who would listen to her concerns, but she has to start with her superior and give him a chance. That he acted as he did may only mean that he would act that way when he has not thought about the issue much, and when he thinks about it and considers Andrea's concerns, he may reconsider his action.

So she must first give him a chance. After that, it will be time enough to consider what else to do. Clearly, if the reasons she thinks call for disclosure are as significant as those we discussed earlier in regard to Emerson, and there is no reason to think the reasons would be any different, then she has an obligation to go further up the organizational ladder should Fred Barnes not wish to pursue the matter. She also has an obligation to tell him what she intends to do--after, of course, they have talked it through and he has had a chance to consider what ought to be done.

If it comes to that, he will feel pressured, and he will be pressured, and that will no doubt create an awkward situation for Andrea. But advancing within a company at the cost of ignoring what is moral is not laudable. Her primary concern ought to be able to figure out a way to make her point without causing the kinds of ripples a confrontation might provoke. So if she has to confront Fred, it ought to be low-key. "Is there someone else I can talk to about this; I'm really feeling uncomfortable about letting it rest here." Or, "Could we both go to X [our superior] and see what he [or she] thinks about this? I don't think either of us should have it on our heads if the worse comes down."

Commentary On

I

The case says that "OSHA guidelines do not apply to chemicals that have not been tested" and that "a relatively small percentage of chemicals in the workplace have actually been tested." OSHA guidelines presumably apply to chemicals, and only to chemicals, that have been tested somewhere or other. Otherwise a company could refuse to comply with any OSHA guidelines on the ground that it, the company, had not tested any of the chemicals. So the way to read the case is that a large percentage of the chemicals used at ABC have not ever been tested for their toxicity anywhere and that therefore they are not subject to OSHA regulations.

What this way of putting the matter brings out is that OSHA is presuming that a chemical is innocent until proven guilty. No chemical is presumed to cause health problems until it has been tested and, one supposes, shown to cause them.

One must presume that OSHA has reasons for this presumption, for clearly they could make other presumptions, even the opposite one, namely, that no chemical is presumed safe until it has been shown not to cause harm. One likely reason is that many new compounds are very helpful, that large numbers are being introduced on a continual basis, and that testing each and every one of them for their toxicity would be a very expensive undertaking and to some measure useless when it is reasonable to assume that many will never be positioned so as to cause problems. For instance, PBB was introduced into the food chain in Michigan when it was accidentally mixed in with farm feed, and no one had a clue what the source of the problem was when the animals began to sicken and die. No one had ever tested PBB for its toxic effects, and with good reason: it would never occur to anyone that a compound primarily used to insulate heat sources would ever get into the food chain. No doubt many chemicals are like that and are never used in any manufacturing process where they are likely to cause problems.

Don Hayward's problem thus turns out to be relatively complex. Hayward cannot appeal to OSHA to prevent the workers from being harmed by hot metals, if they are, because the metals have not been tested by OSHA. So Hayward, if he pursues the matter, will be in the position of asking that ABC Manufacturing satisfy stricter guidelines than those required by OSHA.

But Hayward is supervising workers who are becoming ill, and he has an obligation, as their supervisor, to see if he can find the source of the problem. He is presumably in charge of making sure that whatever it is that the workers are producing is in fact produced, produced in the quantity needed, and when it is needed. So if the workers he supervises are becoming ill, he needs to be concerned about their health just because their ill health may prevent his section of ABC from doing what it is supposed to do. But he also ought to be concerned about some of the long-term implications of the problem for the company. If the workers are becoming ill because of the toxicity of the hot metals they work with, then, whether OSHA guidelines apply or not, the company may have to pay the costs of long-term health care. That the use of metals which cause workers harm is not regulated by OSHA will not necessarily protect the company from a legal suit and perhaps vast monetary awards from sympathetic juries. So the immediate solution of ignoring the problem, which is the implication of Cal Brundage's remark that the company is in full compliance with OSHA guidelines, may have expensive long-term consequences.

He thus has two concerns as an employee of ABC, both of which obligate him to pursue the matter. There is a third source of obligation. That is that some people are being harmed, that he is in a position to help, and that no one else who might help seems to care. The workers are being harmed. It may be that the cause is not the hot metals they are working with, but that seems the obvious first suspect. In any event, Hayward is the workers' supervisor, the one most immediately aware of the problem and, since Brundage, his supervisor, has made it clear that he is not going to pursue the matter, the one best positioned to help. He has an obligation to try to help them that comes from the obligation any of us have, as persons, to come to the aid of others in need of help when we can. This is an obligation that becomes more and more pointed the more harmed the persons are needing help, the less likely it is that they will receive help from others, the better positioned one is to give help, and so on.

The question is what should he do. He has already approached his supervisor about the air quality. He might approach him again, explaining that although having higher air quality might have the company satisfying stricter guidelines than OSHA requires, their capacity to produce the product in his section is likely to be increased. That is, he might use a practical, not a moral argument, to get his supervisor to do something. He might also point out his concerns about the long-term legal consequences, and he might give his moral concerns an airing. He need not feel at this point, that is, that he has exhausted all possible avenues of discussion with the person most likely to be most helpful, his immediate supervisor.

II

Searching the literature for something that might be helpful is another way to proceed. It is better to have some information about whether any of the hot metals may actually be causing a problem if he is to proceed. Of course, if he finds evidence that any have been tested and found to be cause health problems, he has a response to Brundage's remark that the workplace is in compliance with OSHA. It may be, but Don can then go to OSHA, point out that one of the metals not regulated has been tested and found toxic, and ask that it be regulated. Under such circumstances, ABC would be well-advised to go ahead and regulate the use of the metal in a way that would eliminate its toxic effects--either by not using it at all or by using it in a way, or under such conditions, that it could not cause harm.

The puzzle is why he has not gotten the article he has ordered. It seems odd that a supervisory engineer must get approval of his supervisor in order to have an article sent for. Why should anyone else control what one wants to read in the company library? But that is a given.

It is also given that the actual request has twice failed to go through. Anyone who has ever worked in a bureaucracy can sympathize and wonder if, indeed, the requests did not get "lost in the shuffle." So Don cannot assume without more ado that Don is preventing him from getting his article. He should get another request form, take it to Don to get his signature right then and there, to take it back down to the librarian. He can explain to Cal that, for some reason, the request did not make it through, and since he wants to read the article, and has wanted it now for some months, he would like to hand carry the request. If Cal refuses, then he and Don can talk about that and Don will no doubt be faced with a new problem. But at least he will know what the problem is and can pursue it until it is resolved so he can do what he must do to try to help and protect his workers.

I

John should talk to Andy about his concerns. Though it may be true that Andy's work has always been first-rate, continued drinking may cause a deterioration in quality just at a time when Andy needs to be sure that his work is at least as good, if not better, than it has been. In addition, getting a promotion can be stressful, and the likelihood is that someone who drinks will drink more under such conditions. Andy needs to know that someone else has noticed that he drinks and that someone else is concerned about it. If one can notice, others can as well.

There is also a concern, which is perhaps more important, that Andy will be in a supervisory position and the most important one, that of quality control. If Branch, Inc., has been losing ground to its competitors, then one of the likely sources of loss of competitive edge is the quality of its products. If Branch has identified substance abuse as one of the sources of its loss of competitive edge, then the company would be ill-advised to put in as head of quality control someone who drinks. From the company's perspective, that is like putting a fox in a henhouse to guard the hens. That is, quite independently of whether Andy will do a good job, the company has committed itself to a view about whether those who drink do a good job or are harming the company, and the company will presumably be surprised, and no doubt angry, to discover that its new head of quality control himself drinks. The repercussions of Andy's being discovered to drink after being promoted would no doubt be disastrous for Andy, but the main point is that John has an obligation to the company to make sure that those in positions of responsibility are doing what the company requires. In this situation, the company has made a commitment of a certain sort--has a corporate policy, publicly proclaimed--and so one's normal obligations to make sure that the company is not ill-served by its employees takes on added emphasis.

In addition, those in supervisory positions are supposed to present role models for those they supervise. If Branch is now making a concerted effort to prevent substance abuse in the workplace, having Andy in a supervisory position, and in that crucial supervisory position, will undermine its overall commitment should those working under him, or others within the company, discover that he drinks.

So there are three reasons John has for talking with Andy--Andy's own self-interest in doing a good job in an important position, the interests of the company in making sure that those who work for it, especially in that supervisory position, are not abusing any substance, and the interests of the company in making sure that those who are in supervisory positions are proper role models for those they supervise.

II

If Harvey Hillman makes it a point of putting John in a position where it would be awkward for him not to say something about Andy's drinking, then John will have to say something. It should be noted that Harvey does not ask John whether Andy drinks, but the nature of the conversation is such that if he did drink, and it was later discovered that he does and that John knew and said nothing, John would be, quite properly, criticized for not volunteering the information. The question Harvey is asking is indirect, but about as direct an indirect question as one can ask under the circumstances.

If John has not talked with Andy about any of this, he would be in a far worse position than if he has. If he has talked to Andy, he can then explain to him that he, Andy that is, had a chance to go to Harvey himself, explain his problem, and make whatever arrangements were mutually agreeable--to vow to stop drinking and take the position conditionally, perhaps. He could have said to Andy that there was no way that he could continue in that supervisory position without being discovered, especially given the company's publicly expressed commitment to control substance abuse, and that eventually things would come down on him and that he would be well-advised to discuss the issue up front with Harvey. Having been told that, Andy has only himself to blame if John now says to Harvey that perhaps Harvey ought to talk to Andy. He can say, quite honestly, "Andy has done superb work, and I really think that he will do a great job in that position, but, to be honest, I have smelled alcohol on his breath from time to time, and though it has not interfered with his work, you may want to check it out with him."

If he has not talked to Andy about this at all, then he is in a really awkward position. He will feel, rightly, that he has not forewarned his friend and that to say anything now would be somewhat unfair to him. But not to say anything now would be unfair to Branch, and to his superior. In addition, it would not likely help since, in the long run, Andy is bound to be found out. And, so, not saying anything now would likely hurt Andy more in the long run and would hurt John as well. After all, if Andy is up front at the beginning, then perhaps something can be worked out--some conditional arrangement: "I'll try to stop drinking, and we'll check it out in three months." But if he is not up front about this, then when he is found out, if he is, he will probably not be given a second chance: he will be perceived as having deceived the company. And John will be perceived in the same way. Having been given an opportunity to do something beneficial for the company, and for his friend, he will be perceived by Harvey as having let Harvey down personally--since, after all, Harvey will be the one who will have to take responsibility for having put a fox in the henhouse and so for not having properly checked out whether he was a substance abuser--and by the company for not being loyal to the company.

One way of determining what it is proper for someone to do is to ask whether one can ask of anyone in such a situation to do such a thing. If I see someone drowning, and want to know whether I should go in to save them, then it is proper to ask whether I could ask of anyone, similarly situated, to do the same. The answer will vary depending upon the circumstances. Since I am not a strong swimmer, it would be crazy of me to try to save someone in a rapid current, or in an undertow: I would not save the person and I would likely die, too. I could not ask anyone, similarly situated, to make such a risk. Just so, we can ask whether Andy can properly ask of John that John not respond to Harvey's indirect question, and the answer, I suggest, is that Andy can see that if he were in that position, he would feel compelled to answer: his own self-interest, his concerns about the long-term interests of his friend, his concern about Harvey's interests in making a good choice, and his concerns about the company's well-being (and thus his job, his friend's job, his colleagues's jobs throughout the company) all conspire to make a response reasonable.

III

Mandatory random drug testing raises a variety of ethical issues, and one could go on at great length about all the difficulties. Let us concentrate upon two concerns:

First, the proposal to exempt present professionals and test its nonprofessional workforce does raise issues of fairness. This is particularly so since the professionals are the ones responsible for ensuring that the workmanship not be shoddy. One shoddy worker can ruin a product, but if Branch's problems are systemic, it is much more likely that a variety of factors are at work and that proper management could alleviate the problem. So the likelihood, in such a situation, is that the professional managers are as likely culprits as the nonprofessionals.

All this assumes, of course, that Branch is correct in its assessment that substance abuse is the problem. It seems odd that so much abuse should occur in a single place and cause so much difficulty, and one ought to back off and ask whether that really is the source of difficulty. A good manager can sometimes turn a weakness into an asset and turn around a difficult situation by deft managerial maneuvers. So it may be bad management that is partly at fault. But if so, that is all the more reason not to exempt professionals from such testing.

To do so would be to say to the nonprofessionals that the company holds them, and them alone, as responsible for its problems. It is to shift onto those assigned to do the work all the company's problems in getting out a good product and so alleviate the professional staff from any share in the blame. That is not the way to build a cohesive company. Such a policy will rather wedge apart the professional and nonprofessional staffs and so cause one more problem that is likely to cause Branch's difficulties to increase. After all, one cannot improve a product if those doing the work are not willing to come to the professional staff and point out difficulties. Casting blame on those doing the work of assembly, for instance, is not going to make them likely to come to those who have been given a clean bill of health to explain how to improve the product. After all, the company has already decided that the problem lies with the workers, not the professionals, and so any worker who sees a problem that needs a professional to correct has already been told, by the company policy, that the problem is not likely to be perceived as a real one.

So if there is to be mandatory random drug testing, there ought not be discrimination between employees. Everyone from the President on down ought to be subject to such testing, and the procedure ought to be truly random. Some procedure for selecting those to be tested--like a lottery--ought to be instituted to make sure that everyone is equally subject to the test.

There is an additional reason for the need for a pure procedure besides the unfairness and the problems with creating two or more classes of individuals within the company, and that is that such testing is demeaning, and it is important that no individual be exempted because of his or her position from being so demeaned. Perhaps the realization that the person ordering such testing may himself or herself be tested will make them more reluctant to issue such an order.

For, and this is the second issue that needs to be discussed, one major difficulty with random drug testing is that it presumes guilt. It is one thing to notice a problem and ask that someone be tested to make sure that what one thought one noticed is in fact the case. That is like a police officer giving a sobriety test to someone who was weaving the car down the street, as though drunk. One has some evidence in hand of a problem, and the test then determines whether the evidence is accurate or not. Since we presumptively have the power not to drive after drinking, we put ourselves in such a situation where we risk being tested. If we do not wish to be subject to such a risk, we need not drive after drinking. But mandatory testing picks out people quite independently of any evidence that there is a problem. It is as though one is presuming guilt until proven innocent, and that presumption demeans people: why should they be treated as though guilty if they have done nothing to merit such treatment?

In addition, the test itself is demeaning. One is forced to urinate, as tests now are conducted, in a place where others can know that one is urinating and that there is no chance that one will replace one's own urine sample with anyone else's. Many will no doubt not be bothered by such a procedure at all, but many will, and it is offensive to subject them to such a procedure--especially when there is no evidence that they have abused any substance.

So mandatory drug testing which exempts the professional staff is not only discriminatory and may well not get at the problem at its roots--if the professional staff is in part, at least, responsible for Branch's competitive decline--but also demeaning to those it tests, both by presuming guilt without evidence and by subjecting those presumed guilty to a demeaning test.

I

Alison should express her reservations. If Single Failure Criteria require that one assume the loss of one heat exchanger, and if the Criteria themselves are required--that is, if one is required to make sure that they are satisfied--then the failure to determine what would happen if there were only one heat exchanger means that the plant has failed to do what it is required to do. It makes a difference, or course, who is requiring that the Single Failure Criteria be satisfied. If it is the NRC, and it is reasonable to assume that it is, then the Plant Nuclear Safety Review Committee is failing to fulfill one of its obligations in submitting its Justification for Continued Operation to NRC.

Perhaps NRC will see the failure and send the JCO back for the additional information that NRC requires. But there is no guarantee of that. In a complex document, it is easy enough to miss something, even if required. So Alison cannot assume that NRC will catch the Committee's not determining what will happen if one heat exchanger fails.

Even if she could assume that, she has an obligation as a member of the Committee to make sure that the Committee's reports reflect whatever is required. By not expressing her reservations when, by the nature of Rich's comments, it looks as though a vote will be called, she is effectively agreeing to sign off on what she takes to be a flawed document. She has a professional obligation not to do that.

That, as it appears, others may not agree with her is not relevant. An analogy may make this point clearer. The Supreme Court consists of nine justices. It hears cases, and the justices meet together to determine what the Court ought to decide. It is rare that the justices all agree. Unanimity is the exception, not the norm. The justice chosen to write the opinion for the majority is required to circulate his or her draft opinion to all members of the Court, and justices send back comments, suggesting changes, including additional arguments, problems with existing arguments or positions, and so on. The vote, in short, initiates a dialogue among the justices. Sometimes that dialogue changes the votes of some of the justices. As they see a decision argued out, they may become convinced that their original judgment was mistaken. It is the job of each person to give their views as strongly and clearly as possible. Only in that way, it is assumed, can the best decision be reached--the one most likely to withstand further criticism.

The Plant Nuclear Safety Review Committee and, indeed, any official committee of professionals ought to work in the same way. Such a procedure presumes, as a working hypothesis, the respect of each member of the committee for the others, but that respect is both created and maintained by the quality of judgment of the person being respected--a quality of judgment measured by how good the reasons are a person gives, how nuanced to the evidence, how carefully considered in light of objections, and so on.

So if Alison now expresses her reservations, she is immediately calling upon the presumptions about how such a committee ought to operate that make such expressions reasonable and accepted. She is calling upon the other members of the committee to explain why they think such a contingency as the loss of one heat exchanger need not be examined, and she is herself required to explain why it is that she thinks it ought to be examined.

Lying behind such presumptions about how such a committee ought to operate is the further, and deeper, presumption that it is only in such a committee, operating with such respect of the members, one for another, that one can be more sure of coming to a conclusion that will withstand objections than not. There is no guarantee that the conclusion reached will not be mistaken: it is possible that all the members be wrong in one respect or another. But if each member feels entitled and, better, obligated to raise what objections seems appropriate, and if the committee as a whole is obligated to come to grips with the objections, treat them with respect, and respond to them in a reasonable way, then the end result will be better decisions--one more likely to withstand objection.

Alison thus has an obligation to express her reservations, and it is a complex obligation--to the nature of the decision-making process and to her fellow committee members. She is, after all, obligated by a commitment to the decision-making process not to allow her fellow committee members to embarrass themselves by making a bad decision.

II

Alison should vote not to approve the JCO without the Nuclear Safety and Licensing Department making the further calculation, and she should make it clear the reasons she is voting not to approve the JCO--that the Criteria require such a calculation, that it is inappropriate to send the JCO onto the NRC without satisfying the Criteria it requires, and that it will take little work, and waste virtually no time, to do what is required.

She may get a bit of flack for voting that way, but not much, and that is not to the point in any case. If her case is reasonable, then the other members of the committee can hardly complain at her unwillingness to do what she thinks is a mistake.

Of course, one of the problems with what she has done is that she has failed to give arguments for her position given what has been said. On the one hand, she needs to second the observation Mark Reynolds makes. Joe objects, "What's the point?," and the proper response is that the point is that the Criteria require that the contingency be considered and that, to push Mark's point home, the necessary information can be gained quickly and without a great deal of trouble. So, Alison can and should say, she is not asking for much and is asking only for what is required.

But, on the other hand, she needs to respond to the points Louks and Carpello bring up. If having heat exchangers is not itself required, then why is it necessary to test to see what happens if one is lost? It is not to the point to argue, as they do, that so far the plant has been accident-free. One may cross the street all one's life without being run over and without looking both ways, but one's luck does not mean that it is right or all right not to look both ways. Requirements are there to make sure that one do what needs to be done to prevent accidents. It does not follow that if one has not had any accidents, that one need not do what is required. One may not have had any accidents because one has done what is required. But the thrust of the objection Louks and Carpello make is that since the heat exchangers are an extra safety device in any event, not required, it makes no sense to follow the Criteria and see what happens if one of them fails. Many plants have neither, and they have had no problems.

To make her point, Alison needs to argue something like this: heat exchangers are not required, but when they do exist, then the Criteria require that one determine what happens when one fails. It is not unusual to have a situation where one has something extra and then is required, because one has something extra, to make sure it works properly. If car seats for babies were not required by law, but one had one, it would not be inappropriate for a legislature to require that one check to be sure that it works properly. The baby might be no worse off in a car seat that did not stay in place in an accident than if he or she were in an accident without a car seat at all, but since the parent has provided one, the legislature may require that it work properly. Reduced insurance premiums might depend upon the seat working properly, or the legislature might want to be sure that the person who bought it has peace of mind appropriately, and not because of the mistaken assumption that the car seat will protect the child. Just so, NRC may not require heat exchangers, but may require, if a plant has them, that they do the job even if one is down. Nothing in the case tells us anything about that one way or the other, but that is a failure on the part of Alison. She has failed to pursue the dialogue, failed to provide the reasons she needs to provide, to make her position sustainable--and help her colleagues keep from making a mistake.

III

If subsequent calculations show that a single heat exchanger would be adequate, that would not make it wrong for Alison to have cast a negative vote. She is not doing that to prevent the report from going on to NRC, but to make sure that the committee do what is required--assuming that the Criteria are themselves required by NRC--and that the committee work in the appropriate way in coming to its decisions. That is, she has an obligation to present her views, however different they may be from the views of other members of the committee, and an obligation to make sure that the views of others are appropriately reasoned. She is casting a negative vote in part, presumably, because she does not think the position of the committee that the contingency in question need not be examined is a viable position. That she turns out to be wrong does not mean that the committee's position is right. After all, they could not have known when they voted that one heat exchanger would be enough. And, more important, that she turns out to be wrong does not mean that the committee's deliberations were appropriate: the committee failed to come to grips with her objection that the Criteria require determining what happens in such a contingency (assuming that is the thrust of her argument or, what is the same, that she has an acceptable response to the objection of Louks and Carpello).

She may well set a precedent for proceeding without unanimity, but the hope must be that she will begin to initiate the sort of dialogue that ought to mark such deliberative bodies.

Commentary On

I

The question is raised of what Scott should say because of a potential conflict of interest. Presumably a vendor is competing against other vendors for sales, and if Larry does Scott a favor, then he may well presume, and he may be correct in presuming, that Scott will feel that he is under some obligation to return the favor in some way when bids are made to Upscale. One might see how there could be a problem in this way.

Suppose that Larry and another vendor both put in a bid for parts, and that the bids are essentially the same--same material, same costs--so that no objective observer could choose between the two and would even think, if he or she did not know that the two bids came from different vendors, that they are the same bid: they are at least interchangeable. How is Scott to choose between the two? If the two bids are identical, then he has no objective way of making a choice. He can draw straws or flip a coin, decide, that is, in some way that makes the choice undetermined by any additional feature of either vendor. But if Larry has done Scott a favor, and Scott does feel an obligation to do a favor in return, what better chance will he have? He will not be harming the company in giving Larry the bid because the company will be equally served by Larry or the other vendor getting the bid. And the other vendor cannot complain that he or she had a better bid that was turned down for favoritism.

But what he will have done is harm the other vendor by making the choice between the two vendors on some basis other than chance. The choice will be determined by some additional feature of one of the vendors, namely, that Larry plays in the same golf league as Scott and so saw him so he could make an offer to him of his uncle's condo and that he did make such an offer. If the other vendor does not ever see Scott socially, then Larry has an advantage in bidding that the other vendor does not have, namely, being able to do Scott favors that Scott feels that he has to return. So the question is what Scott should do if Larry offers to check out the condo for Scott. There seems to be no harm in Larry checking with his uncle to see if the condo is available and how much the rental will be--provided that Scott tells him up front that he is not able, because of his position, to return the favor in any way in making decisions about what bids to accept or not.

II

A crucial assumption underlying the position just articulated is that the only favor Larry is doing is letting Scott know about his uncle's condo. If Larry fixes it so that the rent is cheaper than normal, then that would be a different situation. For then Larry would be effectively putting money into Scott's pocket, and the presumption any objective observer would make is that Scott's decisions could well be less than objective regarding which bids to accept.

That is, even if Scott's decisions were perfectly proper, even given what Larry has done, if he gets a condo for him more cheaply, they will not necessarily be perceived as perfectly objective by any other vendor. Scott will have lost the trust vendors have a right to impose in him that his decisions be determined by the bids made rather than the favors offered and accepted. So when Larry tells Scott that the condo is $100 a week, Scott should tell him that he cannot accept the offer--even if, as Larry says, his uncle just wants someone to help a bit with taxes and operating expenses. He should ask what the usual rate is when Larry's uncle rents: what does he charge those who are not recommended to him by his nephew? And he could check, as presumably he has checked, on what the normal cost of renting a condo is in that season where he wants to go. Presumably the cost of the latter is more than $100 per week, and under that circumstance, Scott ought not to accept the offer even if Larry's uncle normally does rent to those Larry recommends at such a low rate. For other vendors would still perceive the offer as a favor. And if Larry's uncle did usually rent the condo for more, the case is even clearer.

So, under the principles so far articulated, Scott would not accept the offer. Were he to do so and begin making plans for his vacation, he would be in difficulty should Upscale announce a new policy that says, among other things, that accepting incentives from vendors is strictly prohibited. He could argue that he made the decision to accept the favor before the new policy was announced, that it is now too late to refuse without insulting the vendor, which presumably the company would not want, and without causing him great problems, since he would now have to get another place to stay at the last minute. Or he could argue that he did not, strictly speaking, accept an incentive from Larry since he has no intention of having Larry's offer make any difference at all to what he will do in any event regarding bids. After all the policy presumably prohibits employees from accepting something from vendors that would be an incentive to provide preferential treatment, and Scott does not intend to treat Larry preferentially.

But the difficulty is that he is likely to be perceived as treating Larry preferentially and that it is no doubt the perception as much as the reality that the company wants to avoid. After all, if it allows gifts and disallows only those that bias the judgment of those accepting bids, it will be in the terrible position of having to make complex judgments about who accepted what for what.

These are always difficult judgments to make, and they are time-consuming and expensive: no company ought to want to put itself in a position where it has to make such determinations. So the new policy is undoubtedly intended to preclude any gift or favor that might be perceived as an incentive. Scott could no doubt make a case to the Vice President that what he is doing is not an appropriate object of concern--not that much of a favor and initiated before the policy went into effect--and he might try, as a last course, to talk to the Vice President to see if he can go in any case. That gives him one more course of action, and if the Vice President says that it is acceptable to go, then he can go--though he, and the Vice President and the company, will have to live with the perception of others that Scott's decisions may be biassed by such a favor. But if Scott asks the Vice President, any decision will be on the Vice President's head, not on his, and if the Vice President says it is acceptable to go, then he may.

Commentary On

It is wrong for Al House to order tools that had "no significant use" for his unit at XYZ in order to use them on his own home building projects. That, presumably, is a given. He is cheating the company just as surely as if he dipped into the cash drawers and took out whatever money he needed in order to purchase the tools for himself. The only possible benefit of cheating the company as he did was that other employees might also borrow the tools, and they would thus be benefitted in a way that they would not be if Al were to steal the money to buy the tools for himself.

The moral issue concerns what one ought to do when one knows that someone is stealing from the company for which one works. The complications arise because the person doing the stealing is in some position of power over the person aware of the cheating and because the one person within the same unit who could be talked to is thought unreliable and untrustworthy.

Michael Green, who knows of the cheating, is unwilling to confront Al House or inform the chief engineer. It is not obvious that either position is morally defensible or otherwise appropriate. Consider the chief engineer first. When Michael Green went to the Contract Procurement Agent, the latter talked to the chief engineer who then confronted Al. It may be that Michael thought that if he went to the chief engineer, nothing would happen and that it is the Procurement Agent's having talked to the chief engineer that made a difference. Or it may be that Michael thought that the chief engineer would tell Al that it was Michael who "ratted." In any event, from how things worked out, it looks as though all Michael had to worry about was having the chief engineer tell -- since, in fact, the chief engineer did confront Al when informed of the problem. He did what he needed to do, that is. And Michael could have given him a chance to do that without seeing the Procurement Agent. If the chief engineer refused to act because it was Michael telling him rather than someone outside the unit, or higher up, then it would be time enough for Michael to go to the Procurement Agent -- after informing the chief engineer that that is what he would do.

As it is, Michael has effectively informed the Procurement Agent--by the act of going to him first -- that he does not trust anyone in power within his unit. He has also effectively informed the Agent, by asking him not to inform Al House who has told, that he expects Al to be vindictive. So he has passed on to someone outside the unit negative judgments both about Al's character--he is vindictive as well as someone willing to steal from the company -- and about the chief engineer's character.

In addition, the result of Michael's not confronting Al up front, or telling the chief engineer and giving permission that he be named as the person who knows what is going on and is willing to talk about it, is that everyone in the unit has to confront Al House and be questioned about what he did. The effect of that sort of confrontation is, among other things, that everyone will know both that Al has stolen from the company, that Al suspects that someone in the unit knows, and that whoever knows is not willing to come forward to be identified.

But what were Michael's options? If he confronted Al, then what would the result be? Even if Al then and there ceased to order tools for his own use, his past misconduct would go unpunished, and Michael would risk putting his own position at some risk -- at least insofar as what he did depended upon Al. So confronting Al puts Michael in an awkward position and does not seem to solve the essential problem. What, for instance, is to prevent Al from doing the same sort of thing again, this time somewhat more discreetly, making sure that whatever he orders bears some, however little, relationship to his unit's needs?

What is problematic about the case is that Michael faces such choices. One ought not to arrange matters in such a way as to presume that anyone is likely to cause harm to the company or any of its employees, but matters ought to be arranged so that if someone does, then an effective means of rectifying the situation exists so that neither the person bringing the complaint nor the person against whom the complaint is brought risk being treated unfairly. One needs evidence to make an accusation, but the person accused needs a chance to rebut the evidence, give, that is, their side of the story.

Having an ombudsman would help in such a situation -- someone outside any particular unit of a company whose job it is to listen to concerns about such issues as that facing Michael. Such a person would presumably be committed to strict confidentiality, but also be committed to taking any accusation seriously enough to pursue it, to find out whether there is evidence that it is true and then, if there is, to see to whatever needs to be done given the truth of the accusation.

In short, what is morally problematic in the case in question is something structural within the company, namely, that Michael has so few options available to him when he wants to do what is right. Someone who is concerned to see that the company they work for is not cheated should not have to risk such harm in order to initiate whatever is necessary to rectify matters. One does not want to encourage reckless accusations, made without evidence, but one also does not want a structure that unnecessarily discourages those who would to help the company and/or its employees from being harmed by someone within the company.