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CHAPTER 9: EXTRA CASES
Anti-Nepotism Rule
Facts:
The employer is a Union Local of Electrical Workers with a job referral office in St. Louis. The
union is the bargaining agent for the employer-union’s office employees. The grievance concerns
the employer-union’s policy that it will not employ spouses and close relatives of its members as
full-time office personnel. The St. Louis office employs a business manager, a business
representative, and two office workers. When the business manager and business representative
are out of town, the clerical workers, in addition to their usual tasks, are responsible for the
operation of the union’s hiring hall. The procedure for calling up workers under the hiring hall is
that an unemployed worker signs up on the list and his or her name goes at the bottom of the list
within the same classification. When employers call for referrals, the office personnel start at the
top of the list to call the union workers. However, the usual order of calling up workers may be
altered when the requesting employer asks for workers with a special skill or when the worker is
on the list but is currently employed on a short-term job and is given the opportunity to take a
longer, or better-term job.
The employer-union had a longstanding rule that it would not hire spouses or close
relatives of its members to be full-time office personnel to avoid the potential for abuse and
because of the need to avoid any appearance of favoritism in the selection of workers through the
hiring hall. The grievant was an office worker who was forced to resign when she married a union
member.
The union’s position was that the grievant could have lived with her spouse without the
benefit of marriage and not have violated the policy, showing that the policy was arbitrary and
capricious, and that there was no basis for the employer-union to say that such policy was
necessary for the efficient, orderly, and safe operation of the workplace.
Decision:
The arbitrator agreed that the policy was not prohibited by anything in the collective bargaining
agreement. Both parties had notice of the policy prior to the collective bargaining process and the
union made no effort to have such a policy outlawed under the agreement. The arbitrator also
found that the grievant had notice of the policy and that, indeed, the long-standing enforcement of
the policy had been consistent. Finally, the arbitrator agreed that for purposes of the business
operation of the employer-union, it was a reasonable rule to avoid conflicts or alleged conflicts in
the assignment of work through the hiring hall.
The arbitrator dismissed the union’s contention that, because the employee could have
lived with the spouse without benefit of marriage, the rule was unreasonable. The employer-union
said that were it to have received complaints of favoritism by the grievant toward a union
member, the employer-union would have investigated the living arrangements of the grievant and
have taken whatever actions necessary to do away with such occasions of favoritism. In the
absence of such information, the employer-union would have no reason to question the living
arrangement of an employee. Furthermore, the arbitrator rejected the union’s contention that the
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rule was not necessary because the grievant had not demonstrated any untrustworthy behavior.
The arbitrator did not believe the employer-union had to wait for some act to occur to enforce the
policy that was to prevent not just a discriminatory act, but the appearance or potential for
discriminatory actions.
Questions for Discussion
1. If you were the arbitrator, would you decide for the union or the employer-union? Why?
2. Explain why control of a union hiring hall is so important to both parties in this case.
Seniority List
Facts:
The union protested the inclusion of administrators on a school district seniority list. The list
included the accumulated seniority of former administrators who had returned to teaching and
present administrators who were formerly teachers. The union conceded that teachers promoted
to administration retained the seniority accumulated while in the bargaining units, but it objected
to their accumulating seniority as administrators for the purpose of bumping into the bargaining
unit. The school district admitted that administrators were not in the bargaining unit but defended
their demands on the basis of the contract and past practices.
Decision:
The arbitrator considered the contract language involved and found that when a teacher is
promoted to an administrator’s position, he or she leaves the bargaining unit for purposes of
seniority and does not accumulate seniority for the time spent working as an administrator. In
addition, a person who begins employment as an administrator does not accumulate seniority if
and when he or she becomes a teacher. This decision was based on interpretation of the seniority
section specifying that system-wide seniority would be computed from the date of employment.
The school district contended that the provision is so broad it allows continuation of seniority
accumulation when a teacher is promoted to an administrator’s position, but the arbitrator found
that the reference to “teachers with the highest seniority shall be the last to be laid off” reiterated
the union’s position that the seniority provisions applied only to members of the bargaining unit.
In addition, the arbitrator relied on interpretation of other contracts in the same field that defined
system-wide seniority as the continuous service with the district. In interpreting the contract
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language, the arbitrator found that it did not speak to how seniority would be continued, just from
what date it would begin.1
Questions for Discussion
1. The arbitrator in this case stated that there would be no reason to assume that an
administrator continued to accumulate seniority because the collective bargaining
agreement negotiated by the union is only to protect and provide benefits to those
members of the unit. Moreover, because administrators leave the unit, there would be no
reason for the union to protect them. Recognizing, however, that most administrators in
the school system come from the ranks of the bargaining unit, why would the union not
wish to benefit at least indirectly its members who were capable of being promoted?
2. The arbitrator found only one instance in a “past practice” where an administrator who
returned to elementary teaching was not placed on a layoff list for elementary teachers.
The arbitrator, therefore, gave no credence to the school district’s contention that “past
practice” should be sustained. Had there been a “past practice” do you think the arbitrator
would have found that the language of the contract meant that seniority rights were to
continue to be accumulated?
Seniority Rights
Facts:
In a contract negotiated by UAW International affecting a local plant, a seniority provision was
included which granted veterans of World War II seniority credit for their entire period of service
after being hired by the company and completing a six-month probationary period. The plaintiff
in this case was an employee of the company who objected to new employees receiving credit for
their military service because as an old employee of the company, although he also received
credit for such service, he landed below these new employees on the seniority roster. He claimed
the union did not have the authority under the National Labor Relations Act to enter such an
agreement and deprive him of his seniority rights.
Decision:
The court found that the International was empowered to negotiate a collective bargaining
agreement which represented all the employees at the local plant including both the veterans with
and without prior employment by Ford, as well as the employees who had no military service at
all. The court recognized that when negotiating issues such as seniority, differences as to
application to specific employees must arise. The court found, however, that the difference in
1 Adapted from Clarkston Community Schools, 79 LA 48 (1982).
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application in this case did not violate any duty that the union had toward its members because
the policy negotiated furthered a public policy, that is, to reward employees for their military
service regardless of prior employment.2
Questions for Discussion
1. Seniority rights benefit the employee by giving certain job protections. Seniority rights
also benefit the employer by maintaining experienced employees on the job. In light of
that consideration, what reason would the company have for granting superior seniority
rights to veterans who have no experience with the company?
2. Would you expect a clause concerning promotions in this contract to give more emphasis
to seniority or to relative ability to perform the job?
Layoff
Facts:
The grievant in this case was an employee on leave from his job due to a job-related injury. The
employee was receiving short-term disability payments as provided under the collective
bargaining agreement as well as worker’s compensation benefits. During his leave of absence, a
layoff affecting approximately 10 persons, including the employee, occurred. The company
terminated his short-term disability payments and his insurance coverage as of the date of the
layoff. The union, on behalf of the employee, charged that the company violated the collective
bargaining agreement. The termination of the short-term disability payments and insurance
violated the section that stated:
Full pay, integrated with state disability or worker’s compensation benefits is
provided for up to 90 days for each disability certified by a physician as
preventing the employee from regular work for the period of disability … the
company agrees that, in the case of employee illness, the company will continue
to pay its portion of the premium on health insurance, with the employee to pay
his share up to a period of one year or until the employee terminates, whichever
comes first.
The union contended that the labor agreement mandated that the disability benefits for
the employee continue to the 90-day cutoff and that the insurance coverage continue for a year.
The company contended that the temporary disability planned benefits were not designed
to make up for the wages the employee would have earned but for his temporary disability. Had
the employee been working at the time he was laid off, he would have received no wages after the
2 Adapted from Ford Motor Co. v. Huffman 345 U.S. 330, 73 S.C. 681, 97 L. Ed. 1048, (1953).
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layoff date and therefore he lost no wages due to disability. The company used the same logic in
defending its severance of health insurance payments in that, as the employee would not have
worked any hours due to an economic reduction in force, the time and benefits lost were due to
that layoff rather than the claimed disability.
Decision:
The arbitrator in this case agreed with the union’s reasoning that the language of the contract was
clear and that the benefits provided to the employee under the temporary disability plan and the
premium on health insurance provision could not be terminated because of layoff. The arbitrator
noted that the parties knowledgeably negotiated the language of the contract and that had they
intended to cut off these benefits based on layoff, they would have said so and not used such
phrases as “duration of disability,” “up to ninety days,” “up to one year,” or “termination.”3
Questions for Discussion
1. Employees who were not on disability leave and were laid off effective June 12 received
no further compensation from the company. What justification is there for compensation
being continued to the employee on disability leave?
2. Regardless of the contract language, the employee in this grievance was a laid-off
employee by definition, would not have received wages, and therefore can suffer no wage
loss due to injury or illness. Why, then, did the arbitrator award the continuation of such
benefits?
Union Security
Facts:
In 1944, an employee working for the company refused to pay a union political assessment,
thereupon left the union, and paid no more dues. Under the union rules, he remained a member
until he was “dropped” by some affirmative action of the union. No such action was taken and he
remained a “suspended” member of the union. In 1950 while the employee was working for the
company, the union entered into a union shop contract providing that, in compliance with the Act,
employees were required as a necessary condition of continued employment to become members
of the union in good standing not later than 30 days from the effective day of the agreement or the
beginning date of their employment, whichever occurred later, and that they must maintain such
membership in good standing.
The union had a provision in its constitution that delinquent members could be reinstated
upon payment of a regular new member initiation fee of $10.00, six months back dues of $15.00,
and one month’s dues in advance of $2.75, totaling $27.75. The employee was told when he
3 Adapted from Cutter Laboratories, Inc., 79 L.A. 133 (1982).
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inquired as to reinstatement that he had to pay the sum of $82.25 which included the initiation
fee, one month’s advance dues, $70.50 of past dues, and $2.00 fine for nonpicketing in a prior
strike. The employee protested and was told by the union treasurer that if he did not pay he knew
what would happen at the end of 30 days. After 30 days, the union notified the company to
dismiss the employee, which the company did. The employee sued both the company and the
union for unfair labor practices.
Decision:
The court found that the employer was guilty of an unfair labor practice because he discharged an
employee when he had reasonable grounds for believing that the union membership required
under collective bargaining agreement was denied for reasons other than the failure to tender
periodic dues and initiation fees uniformly required of union members. The court also found that
it was obvious under the evidence that the union violated the Act in seeking the employee’s
dismissal when he had been denied membership to the union on grounds other than failure to
render periodic dues and initiation fees uniformly required as a condition for retaining
membership.4
Questions for Discussion:
1. The Act clearly penalizes employers who take some action against employees as
demonstrated in this case. Because union shop provisions are for the benefit of the union,
why should the company be charged with such enforcement of union internal matters?
2. Employee in this case obviously did not want to be a member of the union for reasons
other than the amount of dues. Why should the Act protect union shop provisions against
such employees?
Successorship
Facts:
Company “A” bought certain operating franchises and physical assets of Company “B.” The
union was a bargaining agent for certain employees both before and after the takeover. On the
day of the takeover, Company “A” unilaterally put into effect wage scales and other benefits
prevailing throughout its system. These scales represented a loss of wages and benefits to the
existing union employees. The union filed charges for refusing to bargain in good faith against
company “A” and the NLRB found in its favor.
The Board conceded that because the contract, which existed between Company “B” and
the union had expired prior to the takeover, Company “A” was not bound by its provisions.
However, Company “A” was a “successor employer” and as such was under a duty to negotiate
with the union once it did take over the company. By instituting wage scales and a benefit
package without negotiations, it breached that duty. The Board ordered the wage and benefits of
4 Adapted from NLRB v. Eclipse Lumber Company, F.2d 684, 9th Cir. (1952).
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the expired contract restored until a new contract could be negotiated. The company appealed that
decision.
Decision:
The court upheld the Board’s ruling. It found that Company “A” continued the business of
Company “B” with no significant changes in operation. The employees were offered employment
and all accepted. All managers and supervisory personnel remained the same. Clearly, Company
“A” was a successor company and had a duty to bargain. The remedy imposed by the Board was
in order to restore the status quo to ensure meaningful bargaining, which is within the Board’s
discretion.5
Questions for Discussion
1. Company “A” recognized the union 11 days after takeover and began negotiations. A
dissenting judge believed the “Board imposed” wages and benefits should only have been
in effect from the day of the takeover until negotiations reached an impasse. Would you
have considered such an order maintenance of the status quo?
2. Company “A” chose to offer all employees their same job and to keep the managers and
supervisors from Company “B.” It must have known it was a successor employer. Why
do you think it waited 11 days to recognize the union?
Outsourcing
Facts:
The company allowed a nonbargaining unit employee to repair an electrical relay on the plant’s
security system, and the union filed a grievance. The union contended that the contract was
violated because it prohibits supervisors from performing the work normally performed by
members of the bargaining union except in emergencies, for training purposes, or to check
equipment. The company’s position was that maintenance of the plant’s security system is work
not normally performed by the union members but contracted out to an outside contractor.
Therefore, the repair is not within the scope of the contract. The union acknowledged that the
normal maintenance is done by an outside contractor but contended that those contracts were
entered pursuant to provisions of the collective bargaining agreement which stated that prior to
outside contracting, the company and union would agree on the scope of the contract. The scope
of this contract did not allow supervisors to perform the work. It was the union’s position that it
agreed to have an outside contractor maintain the security system but not to allow supervisors to
make repairs on the system. The union believed it has some control on the scope of outside
contracts but none on work assigned to supervisors.
5 Adapted from Overnight Transportation Co. v. NLRB, 64 LRRM 2359 (1967).
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Decision:
The arbitrator decided this grievance on the past practice of the parties. Union members had never
maintained the security system. Because it had not, it was not work normally done by the unit
members; therefore, the section prohibiting supervisors from performing the work did not apply.
The union’s point on agreeing to the scope of an outside contract only was simply dismissed as
irrelevant to this case.6
Questions for Discussion
1. As the arbitrator in this case, would you rule for the union or the company? Why?
2. Give reasons why the union would prefer that outside contractors perform the work rather
than supervisors.
3. Give reasons why the company would prefer using supervisors rather than an outside
contractor to perform the work.
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CHAPTER 9: EXERCISE AND EXERCISE GUIDANCE
Merging Seniority Lists
Purpose:
To utilize a group decision-making process with an issue involving seniority.
Task:
Covington Custom Window Mfg. Co. recently bought a smaller window firm, Ft. Wright
Windows. Both had a job classification, aluminum workers, and were represented by locals of the
Aluminum, Brick and Glass Workers International Union. Neither of the agreements, however,
contained a provision on how seniority lists should be combined should a merger occur.
Your tasks, in groups of three to five, are to (1) discuss the five merger principles presented
in the chapter: Surviving Group, Length of Service, Follow the Work, Absolute Rank, and Ratio–
Rank; (2) combine the two lists using each of the five principles; (3) select the method you would
recommend in this situation and develop a written explanation of your decision; and (4) review
the merged lists and provide a written analysis of what effects the merger principle you
recommended may have on the morale of the people involved.
Current Seniority Lists
Covington Mfg. Co. (Est. 1988)
Ft. Wright Mfg. Co. (Est. 1954)
1. Paul Joseph (9 years)
1. Archie Carrell (37 years)
4. Carol King (9 years)
4. Brooks Wilson (24 years)
5. Mark Nutter (7 years)
5. Gary Green (20 years)
6. Christy Nutter (7 years)
6. William Ryan, Jr. (17 years)
7. Mary Gronefeld (7 years)
7. Robert Hatfield (15 years)
8. Bill Gronefeld (7 years)
8. Donna Shipley (11 years)
9. Peggy Gronefeld (7 years)
9. Johnny Ryan (7 years)
10. Jeremy Kling (6 years)
10. Bob Hillard (6 years)
11. Sam Brown (6 years)
11. Jay Vahaly (6 years)
12. Steve Arvizu (5 years)
12. John Nelson (4 years)
13. Gilbert Rojas (5 years)
13. Beth Davenport (2 years)
14. Harvey Sloane (5 years)
14. Bob Shinn (2 years)
15. Bill Stansbury (5 years)
15. Sue Vahaly (1 year)
16. Franklin Dixon (5 years)
16. Bob Myers (1 year)
17. Mary Anne Ryan (4 years)
18. Carolyn Hensley (4 years)
19. Peggy Breeze (4 years)
21. Francis Lamb (4 years)
2. Don Willen (9 years)
2. Myrtle Jaggers (35 years)
3. Anne Kling (9 years)
3. Shari Brown (28 years)
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23. Ev Mann (3 years)
24. Boyd Wang (3 years)
25. Colleen Carrell (3 years)
26. David Banks (2 years)
27. Steve Magre (2 years)
28. Amber Maureen (1 year)
29. Alexis Savannah (1 year)
30. Anna Belle Michaels (1 year)
31. Ralph Swanson (1 year)
32. Sue Clater (1 year)
Combination of the two seniority lists:
A. Surviving Group Principle
32. Sue Clater
48. Bob Myers
B. Length-of-Service Principle
(For ease, whole years are used in practice, and the exact number of days would break
ties.)
1. Archie Carrell (37 years)
3. Shari Brown (28 years)
5. Gary Green (20 years)
7. Robert Hatfield (15 years)
9. Paul Joseph (9 years) (tie)
11. Anne King (9 years)
13. Mark Nutter (7 years)
15. Mary Gronefeld (7 years)
17. Peggy Gronefeld (7 years)
19. Jeremy Klug (6 years) (tie)
22. Ping-Ping Woo (3 years)
21. Jay Vahaly (6 years)
23. Steve Arvizu (5 years) (tie)
25. Harvey Sloane (5 years)
27. Franklin Dixon (5 years)
29. Carolyn Hensley (4 years)
31. John Nelson (4 years)
33. Francis Lamb (4 years)
35. Ev Mann (3 years)
37. Colleen Carrell (3 years)
39. Steve Magre (2 years)
41. Bob Shinn (2 years)
43. Alexis Savannah (1 year)
45. Ralph Swanson (1 year)
47. Sue Vahalz (1 year)
48. Bob Myers (1 year)
C. Follow-the-Work Principle
Covington Manufacturing Co. Ft. Wright Manufacturing Co.
32. Sue Clater 16. Bob Myers
D. Absolute Rank Principle
2. Don Willen, Myrtle Jaggers
4. Carol Krug, Brooks Wilson
6. Christy Nutter, William Ryan, Jr.
8. Bill Gronefeld, Donna Shipley
10. Jeremy Kling, Bob Hillard
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12. Steve Arvizu, John Nelson
14. Harvey Sloane, Bob Shinn
16. Franklin Dixon, Bob Myers
18. Carolyn Hensley
20. Wasu Chin
22. Ping-Ping Woo
24. Boyd Wang
26. David Banks
28. Amber Maureen
30. Anna Belle Michaels
32. Sue Clater
E. Ratio–Rank Principle
(Ratio = 2 to 1)
Covington Manufacturing Co. Ft. Wright Manufacturing Co.
1. Paul Joseph
3. Archie Carrell
5. Carol King
7. Mark Nutter
9. Shari Brown
11. Bill Gronefeld
13. Peggy Gronefeld
15. Gary Green
17. Steve Arvizu
19. Gilbert Rojas
21. Robert Hatfield
23. Franklin Dixon
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25. Mary Anne Ryan
27. Johnny Ryan
29. Wasu Chin
31. Francis Lamb
33. Jay Vahaly
35. Boyd Wang
37. Colleen Carrell
39. Beth Davenport
41. Amber Maureen
43. Alexis Savannah
45. Sue Vahaly
47. Sue Clater
48. Bob Myers
In selecting the method they would choose to analyze the effects of the merger principles
most, students should be encouraged to note where the same people end up on each list such as