Chapter 7 Homework Explain why the relevant provisions of the CBA as applied

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Arena bargaining—a process when management meets with representatives of all the

bargaining units at one time to discuss difficult economic issues so everyone can hear the

same discussions has helped spurred concessions.

10. What are the pros and cons of two-tier pay system?

Pros

Significantly reduced labor costs

CHAPTER 7: YOU BE THE ARBITRATOR

Scheduling Saturday as Part of the Workweek

1. As arbitrator, what would be your award and opinion in this arbitration?

The arbitrator noted that, as both parties point out, the determination of what is meant by

“12:00 a.m.” is subject to dictionary definitions, as well as common usage. So the

language of Section 5.1(B) may be ambiguous, but Section 5.1(B) does not exist in a

vacuum, but is part of an entire Agreement. As such, its meaning may be clarified by

2. Explain why the relevant provisions of the CBA as applied to the facts of this case dictate

the award.

3. What actions might the employer and/or the union have taken to avoid this conflict?

CHAPTER 7: EXTRA CASES

Work Schedules

Facts:

The company is a manufacturer and packager of certain veterinary products. The company’s

operation utilizes an automatic liquid packaging (ALP) machine that requires a continuous nine-

hour operation. The machine is prepared prior to the 8:00 A.M. shift and then runs for nine hours

with approximately two-and-one-half hours of cleanup time after the run is complete. The

employees had worked a regular 8:00 A.M. to 4:30 P.M. shift, with the employees on the 8:00 A.M.

shift completing the cleanup of the machine on overtime. The company changed the work

schedule of three employees on that regular 8:00 A.M. shift to a 10:30 A.M. to 7:00 P.M. shift, two

days a week. The employees were allowed to work either the 8:00 A.M. to 4:30 P.M. shift or the

Decision:

The arbitrator interpreted the Article V language requiring a regular workweek of “… five …

regularly scheduled days …” to mean that each day must be fixed as to starting time and be

regular in point in time, or be steady or uniform in occurrence, and that each day in the workweek

had to begin at the same time. To require employees to start at the same time two out of five

workdays every week is in fact an irregular work week, according to this arbitrator’s decision.

There was no provision in the contract that allowed the employer to schedule irregular

workweeks, therefore the arbitrator upheld the grievance and required the employer to set a

regular workweek for the employees involved.

Questions for Discussion

1. Did the company violate Article V by having employees begin and end their workdays at

different times?

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2. Would the union be able to make the same argument in this case if the schedule for the

affected employees had been changed to 10:30 A.M. to 7:00 P.M. for every day of the

week?

3. The loss of overtime pay was obviously a concern in this case. How could the company

have handled the issue differently and avoided the grievance?

Salary Adjustment

Facts:

In the contract governing the 1980–1981 school year, the parties had agreed that teachers who

attended 93 or more calendar days in any school year would be advanced on the salary schedule

for the following year. The number of days required for advancement was changed in the contract

governing the 1981–1982 school year to 130 days. The school board did not advance teachers in

the 1981–1982 school year who had more than 93 days but less than 130 days attendance in the

1980–1981 school year. The union grieved the school board’s action.

The arbitrator was presented with the following positions. The union claimed that

provisions of the 1980–1981 collective bargaining contract applied and had to be honored

because the employee who attended the required 93 days had already earned the step increase for

the 1981–1982 school year. The school board claimed that as the 1981–1982 contract was in

effect before the school year began, its provisions controlled any salary advancements for that

school year, and therefore the 130-day rule had to be honored.

Decision:

The arbitrator decided in favor of the union. His opinion was based on the fact that the 1981–

1982 collective bargaining agreement did not specifically provide for retroactivity in the

computation of the earned step increase. And, although such retroactivity would have been valid

if agreed to by the parties, it must be clearly stated in the contract and cannot be presumed if the

contract is silent on the issue.

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Questions for Discussion

1. The arbitrator would have sided with the school board if the contract had stated that the

change in the number of required days was retroactive. Do you think such a provision

would be fair?

2. Do you think the pay of professionals, such as teachers, should be advanced on an

objective test such as “attendance,” as opposed to a performance requirement?

Piecework to Straight-Time Pay

Facts:

Under the existing collective bargaining contract, the employer paid some employees straight

time hourly rates and some employees piecework or incentive rates. In order to change any

employee from one rate to the other, the contract required that the employer meet with the union

to discuss the change prior to making any change, and justify the change through the application

of accepted industrial engineering practices.

As a result of engineering studies conducted in 1980–1981, the employer changed the

method of pay for three job classifications from piecework to straight time resulting in savings of

approximately $275 per month. The union grieved the action.

The union contended that the company could not justify the change based on accepted

industrial engineering practices, and that the change was merely a cost-cutting tactic disguised as

an improvement in operations. The company defended its action on the basis that the three job

classifications involved were deficient in the conditions necessary to apply a professional

incentive standard.

Decision:

The arbitrator found, first, that the employer complied with the first requirement of the contract,

that is, meeting with the union prior to any change. The union participated in the studies

undertaken in 1981–1982 and in discussions on the performance standards to be improved under

the straight-line pay rate.

As the second condition, that any change be based on accepted industrial engineering

practices, the arbitrator found in the employer’s favor.

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Questions for Discussion

1. What was the significance of the before 1976 and after 1979 variability of employee

performance noted in the arbitrator’s decision?

2. Could the arbitrator have found for the union in this case on a fairness issue?

Job Bidding

Facts:

Earl S. was, in his own opinion, qualified for a job that was up for bid as a “Senior Production

Coordinator.” In addition to seniority, the union contract required that a bidder have

“occupational experience, education and suitability” to indicate he could acceptably do the job.

Earl had done the particular job in the past on temporary assignment, had held a similar level

position in a different department for 10 months, and held his current position for many years at

which he had demonstrated comparable skills to the job for which he was bidding. Earl was the

senior applicant for the job and felt for sure it was his.

The company, however, decided to require a written test to prove ability. Earl refused to

take the test because he felt he had already proven he was qualified and because written tests for

promotions had never been required before. Management stated the contract allowed them to

determine qualifications in any fair manner they chose and in this case, they wanted to test. They

1 Adapted from Samsonite Corp, 79 LA 73 (1982).

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told Earl to take the test, and if he felt it was an unfair test, he could grieve it. Earl still refused.

The other job bidders took the test and one less senior to Earl was promoted.

Earl grieved the issue. His position was that because he had performed the same job in a

different department it was unfair to require him to take a written test. The company felt that

experience alone did not prove him qualified because it was in a different department. They also

added that they intended to use the test to determine proper salary.

Decision:

Earl won. The company was directed to give him the job and his back pay difference. Although

Questions for Discussion

1. Would you have advised Earl to take the test and still grieve the issue?

2. If the company had shown that it often required a test for promotions in the past, even if

the most senior employee apparently had the qualifications for the job, would the

decision in this case have been different?

Job Evaluation

Facts:

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 their was any other job in the shop that her seniority

might give her the right to claim.

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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 wasn’t recalled for it. Instead, management posted the vacancy and invited

only men to bid for the job.

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.”

Decision:

Management was upheld. The arbitrator wrote: “Whether the company breached the seniority

provisions of the contract in awarding the job to the junior male employee rather than the

Questions for Discussion

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?

Flextime

Facts:

In 1977, the Food and Drug Administration, a federal agency, instituted a flextime plan after

negotiations between the agency and the union. The plan allowed employees, within certain

boundaries, to choose their own starting and quitting times. One provision allowed either party to

cancel the plan at any time. The plan could be modified by the agency after negotiations with the

union.

In 1980, the agency and the union entered a new contract. The new contract referenced

the flextime plan in the following section:

Article 20—Hours of work and tour of duty.

1. The District agrees to consult with the union regarding any changes in the

flextime plan currently in force in the Chicago District. The District agrees to

negotiate with the Union on the impact and implementation of any changes in the

Plan.

The contract also included the following definitions:

Consultations: Verbal or written discussion between representatives of the District and

representatives of the Union for the purpose of obtaining or exchanging viewpoints on

In 1983 the agency sent the union major modifications to the flextime plan and notified

the union that it would meet to negotiate the impact and implementation of those changes as

required by the contract. The union protested that the agency was required to negotiate the

substance of the modifications to the plan as well as the impact and implementation and a

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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

• Nothing in the section shall preclude any agency and any labor organization from negotiating;

• Procedures that management officials of the agency will observe in exercising any

Decision:

The arbitrator agreed with the agency that the language of the contract was clearly and

unequivocally a waiver. 4

Questions for Discussion

1. As the arbitrator in this case, would you have decided the union waived its right to

negotiate changes in the Flextime Plan? Why?

2. How can the employer in this case justify its position of refusing to negotiate changes in

the Flextime Plan when one purpose of instituting a Flextime Plan is to give employees a

sense of control over their workday?

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CHAPTER 7: EXERCISE AND EXERCISE GUIDANCE

Wage Provisions

Purpose:

To help students understand the necessity of using precise language when drafting a contract.

Task:

Divide the class into management and labor and assign each of the following wage topics for

students to write a mutually agreeable contract term.

1. COLA provision for a three-year contract

Students should conduct research to find out what the average or common provision of each type

below is within your region. Then have them prepare the contract provision and share it with the

class.

2. Issues for a profit-sharing plan are: is all of the profit distributed to employees or just

some percentage; does the profit sharing substitute for COLA and other wage increases;

will profits be distributed in stock as well as wages?

3. Issues for a two-tier wage system are: how far apart will the issues of the two tiers be;

will the lower tier ever merge into the higher tier; if so, when; how will the employer