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?
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.
Labor Relations and Collective Bargaining, Chapter 10 "You be the Arbitrator" Refusing to Arbitrate. ARTICLE IV...
1. The following is not a way the parties, the company management and the employees’ union, can select an arbitrator: A. They agree to a single umpire. B. The company management unilaterally determines who the arbitrator will be based on their management rights. C. They agree to a standing panel from which arbitrators are selected as cases arise. D. Using one of any number of agencies, private and public, that maintain rosters of arbitrators, vetted by the agency’s standards and...
Select a unionized organization and locate one of its collective agreements. If you have difficulty finding a collective agreement, your facilitator can assist you with this. Create a scenario that the union/employee(s) view as a violation of the collective agreement and file a grievance based on that scenario. Use the grievance form on pages 2, 3, and 4. The grievance should indicate the type of grievance you are filing (individual, policy or group), the provision(s) of the collective agreement that...
Grievance Case: Insubordination Local 4417 is the authorized bargaining agent for all employees, except clerical, supervisory and security employees, at the Tiger Oil Mill in Montana. On January 5, an electrical motor broke causing the mill to shut down. Shortly thereafter, the Mill Superintendent Frank Tempest assigned Bob White and Michael Johnson to clean the mill’s cyclone. This assignment required the two employees to go up on the mill roof 50 feet above the ground, hold onto the cyclone with...
Please read the article and answer about questions. You and the Law Business and law are inseparable. For B-Money, the two predictably merged when he was negotiat- ing a deal for his tracks. At other times, the merger is unpredictable, like when your business faces an unexpected auto accident, product recall, or government regulation change. In either type of situation, when business owners know the law, they can better protect themselves and sometimes even avoid the problems completely. This chapter...
At the Zooming-Arrow bus lines (ZA), the mechanics were represented by a union. Mr. Jordan Haier (the Grievant), a maintenance mechanic, complained of severe elbow and arm pain as he removed the cracked windshield of a bus in November of last year. Conse- quently, ZA filed a report on his behalf with the state Worker’s Compensation Board. From December to February, Mr. Haier received therapy and treatment while working “light duty” in the Parts Department, consistent with his physician’s restrictions....