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CONTRACT ADMINISTRATION(Adversarial Relationship)

• Traditional collective bargaining during the term of the collective agreement

• Normally carried out through the grievance procedure– Substitute for right to strike

• Means by which the collective agreement is enforced on day-to-day basis

• Traditional Roles of Parties– Management acts– Union reacts through the grievance procedure

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What is a Grievance?

• Normally defined by the collective agreement– any dispute over the interpretation of the agreement

– “express, written terms of the agreement”

– “any difference of opinion”

– “(a)ny difference of opinion, controversy, or dispute . . . concerning conditions of employment, or concerning the interpretation or application of this agreement”

• Typically a grievance will cite the contract provision that is alleged to be violated

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Administration of the Grievance Procedure

• In almost all cases, it is a multistep procedure involving successfully higher levels of union and management– decision-making authority– increasing detachment and objectivity

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Steps in a Typical Grievance Procedure

• Employer -Reps– 1 - F/L Supervisor

– 2 - Plant/Site Labor Relations Director

– 3 - Corp. Labor Relations/Reg. LR

– 4 - Arbitration

• Union Reps– 1 - Steward/

Committeeperson

– 2 - Local President/ Chief Steward/ Chair of Barg Committee (highest plant level)

– 3 - Int. Rep./Local Pres./Bus. Agent

– 4 - Arbitration

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Grievance Procedure – Prior to Arbitration

• Most grievances are resolved prior to final and binding arbitration

• Law generally requires the parties to share information with each other during grievance process– Somewhat analogous to the bargaining process– Purpose is to enhance chances for agreement

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Resolutions• Grievance Withdrawn

– Outright but without prejudice– With an agreement on the matter for the future

• Grievance Granted– Outright but without prejudice– With an agreement on the matter for the future

• Compromise– Discharge

• Employee monetary settlement• Last chance agreement

• Well over 90% of grievances are settled

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Arbitrator Selection Systems

• Ad Hoc– Federal Mediation and Conciliation Service– State Agency (Michigan Employment Relations

Commission)– American Arbitration Association (private)

• Permanent Panel– Rotate– Earliest hearing date

• Single Umpire

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Issues Associated with Selection Systems

• Ad Hoc– Arbitrator clean slate, absence of preconceptions– Not familiar with industry or parties

• Permanent Panel– Familiar with parties– May have preconceptions of parties

• Single Umpire– Similar to permanent panel– Certainty

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Arbitration Procedure• Issue Stipulation (rare)

• Joint Exhibits (exhibits parties agree are authentic and relevant)– contract– grievance chain

• Opening Statements

• Testimony– Direct Exam– Cross Exam– Documents

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Arbitration Procedure(cont.)

• Additional Proofs

• Post-Hearing Arguments– Written Briefs (usually)– Oral (occasionally

• Opinion and Award (30 days)

• Liberal Admission of Evidence

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BASES OF ARBITRATOR’S DECISION

• Must be based on the language of the contract– may not rewrite the contract

– may not change an unreasonable clause if the clause is clear

• Must be based on the record– cannot add facts

– cannot make assumptions based on information not on the record

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DISCIPLINE AND DISCHARGE• Just Cause Required

– Generally Expressed in the contract– Implied where not expressed

• Elements of Just Cause– Did ee do what he/she accused of doing?

• Standard of Proof– Has employer given employee due process?

• notice, full and fair investigation, equal treatment, mitigating circumstances

– Is the matter so serious that the act, if proven, warrants discharge regardless of mitigating circumstances?

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ABSENTEEISM

• Are employer records correct?

• How does grievant’s attendance record compare with other employee?

• Was grievant aware that he/she would be disciplined or discharged?

• No-fault systems

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INSUBORDINATION• DEFINITION

– REFUSAL TO FOLLOW A DIRECT, REASONABLE ORDER– DISRESPECT THAT WOULD HAVE EFFECT OF

UNDERMINING MGMT AUTHORITY• KEY ISSUES

– WAS ORDER CLEARLY EXPRESSED?– WAS ORDER REASONABLE?– DID INSUB. REALLY OCCUR?– WAS EE BELLIGERENT OR HOSTILE?

• PRINCIPLE OF “OBEY FIRST AND GRIEVE LATER” EXCEPT HEALTH AND SAFETY MATTERS

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THEFT

• DOES RECORD INDICATE EMPLOYEE ACTUALLY STOLE?

• WAS THERE INTENT?

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FIGHTING

• WHAT HAPPENED?• WHY DID IT OCCUR?

– PROVOCATION?– SELF-DEFENSE

• EMPLOYER MUST PROVE THAT FIGHT OCCURRED16 AND DISCHARGED EMPLOYEE THE AGGRESSOR

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Standards for Deciding Contract Interpretation Cases

• Must be based on contract

• Must be based on record

• Clear and Unambiguous Contract Language

• Agreement to be Construed as Whole

• Words in a series presumed to include only those words

• Specific Language Supersedes General Language

• Negotiating History – if language ambiguous

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MANAGEMENT RIGHTS

• Reserved rights principle

• Limited by contract

• Reasonableness

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SUBCONTRACTING

• Past Practice

• Business Justification

• Intent of Management (good faith for business purposes or anti-unionism?)

• Availability of Equipment

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Example of “General” vs. “Specific” Language

• “The seniority and employment of an employee shall terminate if . . . the employee is absent from the employ of the Employer for one (1) year for any reason whatsoever . . ..

• “Sickness or injury after the date of employment shall not be cause for discharge. . ..”

• Under this language, may the employer terminate an employee who has not worked in more than one year due to a work-related injury?

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Example of “Words in a Series”

• “The Arbitrator shall have no authority to rule upon job descriptions, work assignments, work standards, or personnel requirements.”

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Example – Management Rights and the Collective Bargaining

Agreement• “Seniority shall be broken only by discharge, voluntary quit, retirement, or

layoff for a period for more than two (2) years.”• “The right to hire and maintain order and efficiency, . . . to determine . . .

the general methods of operating its business . . . are all recognized by the Union and the employees to be among those rights vested in the Employer. Actions taken by the Employer under this Article shall be subject to the rights granted to the Union and the employees elsewhere in this agreement.”

• Under this language, may the Employer terminate an employee who:– has been officially on medical leave of absence and receiving workers’

compensation (WC) benefits for more than one year;– pursuant to the WC statute, has taken a lower-paying job with another

employer; – has an injury that will likely prevent the employee from performing any job in

the bargaining unit for the foreseeable future?

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Example – Pay Dispute

• “In addition to salary, a Route Salesperson shall receive commission on each case sold and delivered as follows: . . . 36.5 cents.”

• Where, for many years, and over many agreements, the company has sold cases with 12 bottles of soft drink per case, may the Company increase the case size from 12 to 15 bottles with no increase in commission?

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Standard - Past Practice

• Long-standing

• Mutually agreed upon and acted upon

• Generally cannot change clear contract language– Exception: if the parties have modified the

agreement by their actions.

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Law of Arbitration

• Generally narrow review of arbitrator’s award.

• Parties bargained for arbitrator’s decision

• Must be based on the agreement.

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Overall Assessment of Grievance Arbitration

• Most successful component of CB system in U.S.– Substitute for right to strike– Acceptability– Infrastructure

• Agencies – Appointment – Arbitrator lists

• National Academy of Arbitrators

• Procedures well-understood• Minimal scope of judicial review