Answers to Case Questions
20
3. Is it the union’s job to represent the views of the majority of its members to management or try to
change union member’s views to be consistent with management’s preferred business strategy?
A union bargaining representative must act as a linking pin between a firm’s management and its
employees who are represented by the union for bargaining purposes. A union must often do both
4. Does the employer have a legal right to implement the change to a new insurance carrier (medical
insurance plan) in this case without bargaining with the union? Why or why not?
The company did not have a legal right to implement the change in insurance carrier and terms
of the health insurance plan without first obtaining the union bargaining representative’s
agreement to the changes. Health insurance is a mandatory subject of bargaining. The current
CASE STUDY 7-4 Does the Deputy Sheriff Deserve a Pay Raise?
1. If you were Ms. Beauregard, how would you compare Mrs. Davis’ and Mr. Jasper’s
qualifications? What factors would be most important to you?
If I were Ms. Beauregard, I would compare both education and experience. Mrs. Davis has a
21
2. Analyze the key arguments that each side makes. Which are most compelling? Why?
3. Management argues that the arbitrator should defer to managerial judgment. Generally, under
what conditions should arbitrators defer to managerial authority and under what conditions should
they not?
4. Is the job of the arbitrator to determine whether the Grievant deserves higher pay or is the
arbitrator’s job simply to determine whether or not the collective bargaining agreement has been
violated? Or both?
5. If you were to re-write the language of the wage adjustment contract clause, perhaps
incorporating concepts covered in this chapter (e.g., skill-based pay, job evaluation, two-tier pay
plan), how would you improve the clause? Justify your revision.
I would rewrite the wage adjustment contract clause to:
If a new employee is employed at a salary rate above the minimum pay rate, the affected
Department Head shall review the education and work experience, and performance evaluation
Answers to Case Questions
22
CASE STUDY 8-1 Discharged for Facebook Comments
1. Under what conditions, if any, does an employer have a legal right to discipline or discharge an
employee for comments
t
he employee makes about the
c
ompany? Would it matter if the
comments were posted to a company-sponsored Internet forum, rather than Facebook? Would it
matter if the comments were posted to a union-sponsored forum accessible only to members?
Why or why not?
This is a clearly a violation of the National Labor Relations Act.
Employees have a right to speak jointly about their working conditions or about their supervisors.
That act prohibits employers from punishing employees—whether union or nonunion—for
2. If you were representing the company in this case and the
NLRB
regional director asked if you
would be willing to settle the union’s charges voluntarily, would you do so or would you insist
on your legal right to a formal
NLRB
hearing on the charges? Explain your reasoning.
3. Did the company commit an unfair labor practice by (1) discharging Nelson for her Facebook
postings, (2) denying Nelson an opportunity to meet with her local union representative during
an investigatory meeting with her supervisor, or (3) enforcing an overly broad blogging and
Internet use policy?
24
2. Was the decision by JTI to award only half of the safety bonus money available to its truck
drivers a lawful employer decision?
3. If you had been advising JTI on the safety bonus issue, would you have recommended the
company retain half the bonus money for the purposes described by the company (i.e., buy safety
equipment and pay for the annual Christmas party)? Why or why not?
A strong case can be made against recommending that the company retain half the bonus. First,
CASE STUDY 8-4 “Donning Safety Equipment?” or “Changing
Clothes?”
1. Analyze how each side interprets the meaning of this contract clause. Whose position is more
persuasive? Why?
2. In 1947, Congress passed the Portal-to–Portal Act (a “portal” is a doorway; 61 Stat. 84, as
amended, 29 U. S. C. §251 et seq. (2006 ed. and Supp. V). §251(a). This law said that an
employer is not liable to pay workers for time they spend traveling to work (e.g., an hour-long
commute). It also excludes from compensable time, “activities which are preliminary to or
postliminary to [the] principal activity or activities [that an employee is employed to perform],
which occur either prior to the time on any particular workday at which such employee
commences, or subsequent to the time on any particular workday at which he ceases, such
principal activity or activities.” 61 Stat. 87, 29 U. S. C. §254(a)(2). Further, in 1949, Congress
amended the Fair Labor Standards Act (which regulates overtime) to read, “[In determining] the
hours for which an employee is employed, there shall be excluded any time spent in changing
clothes or washing at the beginning or end of each workday.” 63 Stat. 911, 29 U. S. C. §203(o).
This law excluded “changing clothes” from compensable time, but it also specifically allowed
collective bargaining agreements to specify that such time be paid. Analyze the case in light of
these two relevant laws.
Answers to Case Questions
In light of the Portal-to-Portal Act, the company has a solid argument. Traveling to work is not
CASE STUDY 9-1 An Interest Arbitration Hearing
1. Assume the role of a Conventional Interest Arbitrator: Analyze the arguments for a two-year vs. a
three-year contract. Which arguments are most compelling? Why?
2. Turning to the wage issue, consider the three “other factors:” (1) the ability to pay, (2) bargaining
history of the parties, and (3) retention and recruitment of personnel. Which side does each factor
tend to favor? Why?
The ability to pay factor favors the Association. They have shown that the city, by all accounts, is
3. Why does the list of comparable cities matter? Other than population, what should an arbitrator
consider when deciding whether a city is “comparable” to another city?
4. If you were a Conventional Interest Arbitrator, how would you rule on the wage issue? Explain
your rationale.
As a Conventional Interest Arbitrator, I would take advantage of the right to implement a third
5. If you were a Final-Offer Interest Arbitrator, and you could only pick one side’s “package” of
proposals, which side would you pick? Why?
Answers to Case Questions
26
If forced to pick one proposal in its entirety, I would side with the City. Their arguments for a
6. Suppose you were asked to mediate this dispute. What would you do, procedurally? What would
you suggest regarding the issues? How would you motivate the parties to settle?
If asked to mediate this dispute, I would first ask the parties to separate the two issues and settle
them independently. I would suggest beginning with the contract length issue and I would
CASE STUDY 9-2 Legitimate Picketing? Or Illegal Secondary
Boycott?
1. Which employer was the primary employer? The secondary employer?
2. The union distinguishes between displaying a stationary banner and picketing (where union
members move about, carrying wooden signs). Analyze this argument.
Not moving about, according to the union, is not as intrusive as picketing and did not block any
Answers to Case Questions
An employer may remove union messages carrying a significant threat of disrupting management
efforts to maintain reasonable plant discipline and harmonious employee-employer relations
The purpose of posting the union message was to tell bargaining unit employees who had failed
Clay Products Co., 106 NLRB 267, 273 (1953); enf. 215 F. 2d 48 (6th Cir. 1954)].
The appropriate remedy would be a cease and desist order to halt further unfair labor practices
CASE STUDY 9-4 The Right to Strike
1. Does the work stoppage by the truck drivers in this case represent an economic strike or an unfair
labor practice strike?
2. What is the difference between the reinstatement rights of an unfair labor practice striker and an
economic striker?
29
3. Did the employer unlawfully discharge the four truck drivers who never returned to work?
Explain your reasoning.
CASE STUDY 9-5 Denial of Health Care Benefits to Striking
Employees
1. Should the arbitrator uphold the union’s grievance and find that the company’s withdrawal of
medical benefits from striking workers violated their contractual right to receive such benefits? If
so, what should the appropriate remedy be? Explain your reasoning.
2. When the current contract governing the Michigan plant expires, would you advise the employer
to negotiate specific contract language as part of a no-strike agreement clearly waiving bargaining
unit members’ right to engage in a sympathy strike during the term of the labor agreement?
Explain your reasoning.
3. If the employer did propose a waiver of sympathy strike rights in the future, would this
bargaining issue likely represent a high-, medium-, or low-priority item for the union and its
membership? Explain your reasoning.
CASE STUDY 9-6 Product Picket Activity
1. Would the Stop & Shop grocery store in this case be classified as neutral, secondary employer
or business ally of the Brown Bag Company? Explain your reasoning.
30
2. Should the merged product doctrine be applied in this case to declare that the union’s product
picket action was unlawful? Explain your reasoning.
Yes, the merged product doctrine should be applied in this case to declare that the union’s
This case is similar to American Bread Co. v. NLRB, 411 F. ed 147 (6th Cir. 1969). In American
In this case, grocery bags are necessary for Shop & Stop to sell its product. They are part and
CASE STUDY 10-1 Are These Grievances Arbitrable?
1. Assess the union’s argument that the parties in the past have agreed to extend time limits.
It is apparent that putting grievances on hold via an informal notice was a usual and customary
2. Should the arbitrator be influenced by any evidence over the reasons for the termination of those
two employees?
3. What are the company’s best evidence and arguments?
Company:
Answers to Case Questions
32
6. If you are a member of management and learn about Willie’s position and the union’s position,
what would you do?
CASE STUDY 11-1 Whether the Employer Violated the Contract by
Implementing Fleet Operation Changes on or
about June 18, 2014? If so, What Is the
Appropriate Remedy?
1. What is the appropriate level of proof?
2. Which party bears the burden of proof?
3. Could this matter be subject matter under the jurisdiction of the NLRB?
4. Should the arbitrator consider the Company’s attempt to bargain over the reduction to 65 miles
per hour?
5. You be the arbitrator and decide the outcome. Give your reasoning.
As the arbitrator, I would rule in favor of the union with regard to the top speed allowed. It
Answers to Case Questions
33
CASE STUDY 11-2 Issue: Did the Company Violate the Collective
Bargaining Agreement When it Reduced the
Hours of Full-Time Employees to Less than 35
Hours per Week as This Action Relates to the
NLRB Charge?
1. What is meant by the Unfair Labor Practice charge being deferred to arbitration? Is the
arbitrator’s decision final and binding?
2. What influence do you believe the enactment of the Affordable Care Act had on the Company’s
actions?
3. Take the position of the Company and lay out its arguments.
As a Company, we maintain the right to establish new jobs, abolish or change existing jobs, and
4. Take the position of the Union and lay out its arguments.
All current government contracts were bid with full-time employees (including their benefits
5. Now, be the arbitrator and decide the outcome.
Answers to Case Questions
CASE STUDY 11-3 Should Employee Be Penalized for On-the-Job
Injury?
1. What is the rule on the use of a past practice?
2. Has the union established a past practice?
3. Does the contract language support the union position?
4. How should the arbitrator rule? Why?
CASE STUDY 12-1 Issue: Was Mr. Babcock’s termination for just
cause? If not, what is the remedy?
1. Apply the elements of employee discipline to this arbitration. Determine whether these elements
are helpful in making the decision.
The steps of progressive employee discipline for this company are: First Step—Document
Answers to Case Questions
CASE STUDY 13-1 Unions Representing Public Employees
1. Which party has the burden of proof?
2. Which level of proof should be used by the arbitrator?
3. Is this matter a contract administration case or a disciplinary case? Which party should go first at
the hearing?
4. Should progressive discipline have been used in this matter? Why? Why not?
5. Which side has the best arguments?
Though the pressure of the media would suggest otherwise, the union has the best arguments. The
6. How should the arbitrator decide? Give your reasons.
Answers to Case Questions
CASE STUDY 13-2 Discharge for Off-Duty Conduct
1. What are the rules for discharge for off-duty conduct?
2. Explain the term nexus as used in labor arbitration.
Nexus is a term which refers to a connection between the off-duty conduct and employee’s
3. Does equal treatment have any bearing on the outcome of this decision?
4. What is the rule concerning use of the employer’s submission of the unemployment
compensation claim in the labor arbitration proceedings?
5. How much weight should be given to Mr. Lee’s job performance after his conviction but before
his termination?
With regard to Lee’s length of service, it is well established among arbitrators that service as a
6. Should the arbitrator consider the union’s submission of evidence of the continued employment of
Ms. Edwards and Mr. Hall? Give your reasoning.
7. How much weight should be given to previous arbitrators’ decisions? Explain.
Answers to Case Questions
38
8. What will the arbitrator decide? Why?