Question

On October 26, Zelda T., an employee in the pattern department of a synthetic rubber products company, was told she would be laid off for lack of work five days later. This notice, required by the collective bargaining agreement, was intended to give an employee facing idleness an opportunity to look around and see whether there was any other job in the shop that her seniority might give her the right to claim.

Zelda and the union steward did just that, and their attention focused on a small parts assembler job in another department. Zelda had once done that work, so there seemed to be no question about her ability, and she had more seniority than the employee who was performing the job did.

Management agreed that the small parts operator job was one Zelda might bump into. There was only one trouble: That job was running out too. The result was that Zelda went on layoff on November 2, as scheduled.

On December 7, while still on layoff, Zelda learned that the small parts operator job opened up, but she was not recalled for it. Instead, management posted the vacancy and invited only men to bid for the job.

“Because of production needs, we’re changing the specifications of that job,” the personnel manager explained to the steward. “Whoever does that job will have to handle heavy molds. We’ve got to have a man on that job.”

The steward was not convinced, and he became even more skeptical when he saw the man who got the job worked only one day on the heavy work, and spent the rest of the time on ordinary work that Zelda, who had more seniority than the man, might have done.

A grievance was filed, and it finally went to arbitration, where the union argued that the assertion that heavy work required a man was only camouflage to deprive Zelda of her seniority rights. Furthermore, the union argued, management had earlier agreed that Zelda could bump the small parts operator, and it was too late to take a different position now.

Management hotly rejected the accusations. “Everything we did was in good faith,” the industrial relations director said. “When we said Zelda was fit to do the work, she was. Later, the heavy work came in and we had to have a man on the job, even if the heavy aspect of the job wasn’t a daily occurrence.”

Please answer the question below.

1. Who was upheld, management or the union. Why?

1. Do you take this award to mean that if Zelda had been able to bump into the job in question, she might still have been removed from it later when management decided to add heavy work to the job requirements?

2. Under some contracts, management has broad authority to change the content of jobs. Under other contracts, managerial prerogatives in this respect are much more restricted. What impression do you get from the award on this company’s authority to alter job context? Do you think the “management rights” clause here was broad or narrow?

Answer 1

The agency agreed that hours of work was a mandatory bargaining subject but pointed out that the union waived its right to bargain about changes when it agreed to Article 20.

The agency’s opinion was that Article 20 clearly delineated the responsibilities the flextime plan. The agency must “consult” on changes to the plan and “negotiate” the impact and implementation. The contract clearly defines “consultation” and “negotiations” as well.The union pointed out that a waiver must be clear and unequivocal, and disagreed with the agency’s interpretation of the contract. The union stated that Article 20 was vague as to what the difference between ‘changes’ and ‘impact and implementation’ might be, and therefore, the vagueness precluded any waiver of rights by the union. Moreover, if the contract looked like a waiver, using bargaining history and past practice, the union believed it could show it did not intend to waive its rights. Article 20 was added to the 1980 contract to counteract the provision of the flextime plan from 1977 that allowed either party to cancel it at any time. Obviously, the union wanted its rights preserved. In addition, it pointed out that changes made in the plan from 1980 to 1983 were minor, and the parties may have negotiated only the impact of those changes. The agency acknowledged that ‘changes’ and ‘impact and implementation’ were not defined, but said they were defined in the federal statutes governing the bargaining obligation of the agency.