The CBA- powerpoint

MGT 334 Employment & Labor Law

The Collective Bargaining Agreement

  • Instructor: Dawn D Brackmann

Overview of Key Topics

  • Organized Labor / The NLRA

  • Representation / Duty of Fair Representation

  • Collective Bargaining / The CBA

  • Unfair Labor Practices

  • Public-Sector Labor Relations

The Collective Bargaining Agreement (CBA)

  • Rights and Obligations:

    • The CBA creates rights for the employees and imposes obligations on the employers and unions.

    • Violations: What transpires if the CBA is breached?

Understanding Grievances

  • Definition of a Grievance:

    • Broadly defined as any circumstance that provides just cause for protest.

  • Labor Law Grievance:

    • A specific complaint indicating that one party to the CBA is failing to comply with their obligations.

Types of CBA Grievance Issues

  • Administrative Issues: Issues related to the procedures and policies outlined in the CBA.

  • Economic Issues: Concerns regarding payments, wages, or other financial terms of the CBA.

  • Disciplinary Issues: Matters involving discipline applied to employees, including termination or suspension.

  • Major Issues: Significant changes or violations that affect a large number of employees.

  • Performance: Issues with how employee performance is measured and interpreted.

  • Contract Interpretation and Enforcement: Situations where the terms of the CBA are unclear or disputed.

Identifying a Grievance

Key Factors to Consider:

  1. The Contract / CBA: Review the text of the CBA itself.

  2. The Law: Consider legal standards that apply.

  3. Employer Rules and Policies: Assess compliance with the employer's stated policies.

  4. Unfair or Disparate Treatment: Compare treatment of employees in similar situations.

  5. Past Practice: Look for historical practices that have been accepted.

  6. Just Cause: Ensure that there is a legitimate basis for the grievance.

Understanding Past Practice

  • Characteristics of Past Practice:

    • Occurs regularly and consistently.

    • Both the union and management have acknowledged it without objection.

    • Does not violate the CBA or any written company policy.

    • Typically applied in situations where the CBA does not explicitly address the issue.

  • Grievance Arising from Past Practice: If management changes a procedure that employees have been following, or disciplines an employee for following established procedures.

  • Example: Pay for donning Personal Protective Equipment (PPE) could illustrate a grievance arising from past practice.

Just Cause Rule

  • Key Questions to Determine Just Cause:

    • Rule: Is there an applicable rule? Is the rule reasonable and known?

    • Employee: Did the employee know about the rule and were they warned before?

    • Investigation: Was the investigation conducted thoroughly, fairly, and objectively?

    • Evidence: Is there substantial evidence that meets the burden of proof (BOP)?

    • Rule Application: Was the rule applied without discrimination?

    • Penalty: Is the penalty fitting for the offense? Considerations include the seriousness of the offense and the employee's prior record, as well as any mitigating circumstances.

Evaluating Just Cause

  • Two Primary Issues to Address:

    1. Did the employee commit a violation of the CBA?

    2. Is the penalty imposed appropriate given the violation?

  • Considerations Related to Job Security: Assessment of job security plays a significant role in this evaluation.

Investigation Process Regarding Grievances

  • Should the Union Grieve? : Considerations for unions when deciding whether to submit a grievance:

    • Complying with Rules of Evidence.

    • Nature of the Problem: Clearly define what the issue is.

    • Fact Gathering: Collect pertinent facts about the grievance.

    • Review Records: Examine all records and relevant documentation.

    • Document: Maintain comprehensive records of the investigation process.

The Grievance Process

  • Definition: A structured approach established in the CBA to manage complaints.

  • Steps in the Grievance Process:

    1. Union and Employee meet with the Supervisor.

    2. Union and Employee meet with a Management Representative.

    3. Local Union and Management OR Grievance Panel engage.

    4. If unresolved, the matter goes to Arbitration.

  • Important Note: This process is an example; the CBA specifics govern the actual process. Pay attention to time limits stipulated in the CBA.

Settling the Grievance

  • Responsibilities: Both the Union and Supervisor are responsible for resolving the issue.

  • Outcomes: The resolution should address the merits of the grievance. If an initial agreement cannot be reached, documentation and employee consultation must be carried out.

Alternative Dispute Resolution (ADR)

  • Methods of ADR include:

    • Conciliation

    • Mediation

    • Arbitration: An independent third party is involved in resolving disputes.

Arbitration in Detail

  • Definition: A process for settling disputes where an independent adjudicator is selected by both parties.

  • Requirement: In return for the arbitration agreement, parties give up the right to strike or lockout.

  • Nature of an Arbitrator's Decision: Generally final, binding, and enforceable.

  • Considerations for Management and Unions: The question arises whether management or the union should proceed to arbitration.

Characteristics of Arbitration

  • Finality: Decisions made through arbitration are generally final.

  • Binding and Enforceable: Agreements made through arbitration must be adhered to.

  • Voluntary Nature: Participation in arbitration is typically on a voluntary basis.

  • Flexibility: The arbitration process provides flexibility in dealing with disputes.

  • Governing Contract Terms: Contractual terms dictate the arbitration proceedings.

Arbitration Process Steps

  1. Request for Arbitration: Initiation of the arbitration process.

  2. Select Arbitrator: Both parties select an agreed-upon arbitrator.

  3. Arbitration Management: Management of the hearings and processes associated with arbitration.

  4. The Hearing: Presentation of the case to the arbitrator.

  5. The Decision: The arbitrator makes a final ruling on the matter.

Court Involvement in Arbitrations

  • Enforcement of Arbitrator's Decision: Courts will generally enforce arbitration decisions made by arbitrators if parties agreed to arbitration.

  • Coverage Under Arbitration Clause: Courts must determine whether grievances fall under arbitration agreements.

  • Case Reference: Textile Workers Union of America v. Lincoln Mills of Alabama, 353 US 448 (1957).

The Steelworkers Trilogy (1960)

  1. Courts will order arbitration unless it can be positively assured that the arbitration clause does not apply to the dispute.

  2. Courts are not to weigh merits of grievances; they determine procedural adherence instead.

  3. Enforcement of decisions unless the arbitrator has exceeded their authority.

If Court Vacates the Arbitrator’s Decision

  • General Rule: In cases where an arbitrator’s decision is vacated, the Court must remand back to arbitration for resolution rather than resolving merits itself.

Enforcement Parameters for Courts

  • Limits on Enforcement: Courts will enforce arbitration results unless:

    • The arbitrator exceeded their granted authority.

    • Decisions violated laws.

    • Decisions violated “explicit” public policy.

  • Referenced Case: Eastern Associated Coal Corporation v United Mine Workers of America, District 17, 531 US 57 (2000).

Status Changes of Employers

  • Successor Employers: Inquiry into obligations regarding union recognition, adherence to CBA, and arbitration of disputes.

    • Successor employers are required to arbitrate grievances arising under the CBA when:

      • There is substantial continuity in the business entity.

      • The employer retains a majority of workforce from the former unionized staff.

  • Case Reference: Fall River Dyeing & Finishing Corp v NLRB, 482 US 27 (1987).