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Labor Relations and Collective Bargaining, Chapter 10 "You be the Arbitrator" Refusing to Arbitrate. ARTICLE IV...

Labor Relations and Collective Bargaining, Chapter 10 "You be the Arbitrator" Refusing to Arbitrate.

ARTICLE IV
GRIEVANCE PROCEDURE

3. If the grievance is not resolved at the conference as provided for In STEP TWO above, then either party may request, in writing, within fifteen (15) days of the conference that the matter proceed in accordance with ARTICLE V. Failure of either party to give such written notice shall waive the rights to proceed in accordance with ARTICLE V.

ARTICLE V
ARBITRATION

1. Disputes concerning contract interpretation, the disposition of assets, the right of sale, the right to control the number of hours that the plant be open or closed down either for lack of business or for economic reasons, or matters which involve management decision or business judgment shall not be subject to arbitration. Procedural questions of compliance with the contract shall be subject to judicial determination and not arbitration. Either party may seek judicial relief with regard to any of the foregoing. Any other disputes concerning working conditions, safety or other matters not excluded herein, shall be subject to arbitration; provided a written notice has been given as provided in ARTICLE IV, Section 3 above. The Company and the Union shall attempt by mutual agreement to appoint an arbitrator, then either party may request a panel of arbitrators to be submitted by the Federal Mediation and Conciliation Service, State Conciliation Service or American Arbitration Association, and an arbitrator shall be selected from such panel by the process of each party alternately eliminating one of the suggested names until there remains only one name on the panel. . . .

Facts
The Union and Employer are parties to a written collectivebargaining agreement (the CBA) covering a 30-member unit of production employees at a plant in Yuma, Arizona. The CBA has a no-strike, no-lockout provision and requires that all disputes and grievances be resolved under the grievance procedure in the agreement. The CBA includes a two-step formal grievance procedure prior to either arbitration or judicial enforcement. The CBA requires that formal grievances at step one and step two to be in writing, describe the facts, state the remedy sought, and identify the sections of the CBA claimed to have been violated. The Union filed four grievances, none of which were resolved at Step two. The issues grieved were (1) a performance memo issued to an employee for having a negative and uncooperative attitude and suspending her for three days, (2) an employee being improperly hired and paid from the piece rate pool generated by senior unit employees, (3) an operator improperly given a share of group piecework pay for work done by other unit employees, (4) a written warning issued to the entire crew for asserted violations of company policy and a work rule. The Union sent separate letters to the State Mediation and Conciliation Service requesting a panel of arbitrators for each grievance. Each of the letters stated, inter alia, “This matter is a labor dispute involving interpretation and application of a collective-bargaining agreement.” The Employer refused to arbitrate these grievances, contending that they were not subject to arbitration under the CBA.

Issue
Was the Employer’s refusal to arbitrate the grievances an unfair labor practice?

Union Position
An employer’s refusal to arbitrate grievances, pursuant to a collective-bargaining agreement, violates Section 8(a)(5) of the act if the employer’s conduct amounts to a unilateral modification or wholesale repudiation of the collectivebargaining agreement. The Union charged that the Employer’s refusal to arbitrate grievances in this case was both an unlawful contract modification and an unlawful unilateral change. In refusing to arbitrate the grievances, the Employer relied on the narrow language of the arbitration clause, which excludes from arbitration disputes concerning contract interpretation or matters which involve management decision or business judgment. The Union asserts that the grievances at issue here were not excluded by the language of the contact, and that even assuming that there was some arguable basis for the Employer’s position, the Employer was required to arbitrate the arbitrability of the grievances. The Union further argues that the Employer’s conduct is a “wholesale” repudiation of the arbitration procedure.

Employer Position
It is well settled that arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute that the party has not agreed to submit. The CBA in this case contains a very narrow arbitration clause, expressly excluding, inter alia, “[d]isputes concerning contract interpretation . . . management decision or business judgment.” The Employer contended that the four grievances concerned contract interpretation, management decisions, or business judgment and were therefore excluded from the arbitration provision. The Union itself initially
took the position that the four grievances involved contract interpretation; the Union’s letters requesting the arbitration of those grievances stated that the “matter is a labor dispute involving interpretation and application of a collective-bargaining agreement.” Given the nature of the grievances and the Union’s own characterization of the four grievances as involving contract interpretation, the Employer was under no obligation to arbitrate the four grievances.

QUESTIONS
1. As arbitrator, what would be your award and opinion in this arbitration?
2. Identify the key, relevant section(s), phrases, or words of the collective bargaining agreement (CBA), and explain why they were critical in making your decision.
3. What actions might the employer and/or the union have taken to avoid this conflict?

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Answer #1

1. My award and opinion as an arbitrator would be to be in accordance with the union’s position. The grievant could have committed any type of irresponsible actions or any discrepancies, there is no way to prove it, and the fault for setting up such system where the guilty cannot be proven was made by the employer. Therefore, in this case, the grievant does not belong inside the circumference of “just cause” because the employer did not set up a proper boundary that makes the application of “just cause” standard apprehensible.
In my opinion, the employer now has learned what kind of discrepancies can occur and modify the security issues regarding the remaining medications. Any discrepancies occurred after a “just” modification of the rules shall be applied strictly as intended by the employer. My award and opinion as an arbitrator would be coming to an agreement with the union’s position.

2. According to the CBA, “The employer may establish and publish reasonable rules and regulations governing the conduct of employees, as are necessary for the proper operations of the facilities and the proper care of residents.” In this situation, the grievant did not follow the rules according to the CBA leading to the loss of Schedule III drugs gone missing. Since this part of the CBA was broken, the employee was terminated with just cause. The discrepancy in the drug charts showing drugs gone missing is a direct link to the charge nurse who was responsible for the administration and keeping track of all drugs given to residents.

3. The employer could have help workshop reiterating the importance of keeping tack of all scheduled drugs that leave and enter the building and what drugs are given to which residents and why. This could have prevented this problem of those drugs that have gone missing. The union could have consulted with all employees to make sure they were aware of the policies and procedures concerning the administration of scheduled drugs. The employer and/or the union could have taken their time and arranged a meeting with the employee. In this meeting were supposed to clearly outline to the employee how the hours were supposed to be carried out. After this explanation, the employee could have been given a chance to ask a clarification in case there was a section he did not understand. by doing this conflict have been avoided.

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