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Human Resources Management Labor Unions + Relations

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In this assignment, you are asked to respond to the following question:

How effective are the grievance and arbitration processes? Refer to the issues discussed in case studies 10.2 and 11.3 and the video links below. Refer to the questions found at the end of the case study to help you think about your answer to the question above.

10.2
On August 15, employees Billie Green, Mary Swallows, Betty Jones, and Edie Barnett lunched together in the company's parking lot. The discussion centered on Barnett's pending grievance concerning her recently completed layoff. Green, a nonunion employee, asked Barnett if she had said that Green had not been laid off because she was providing sexual favors to a supervisor. When Barnett admitted that she had made the comment, Green asserted that Barnett's husband engaged in sexual conduct with Swallows, a union employee. Swallows then slapped Green, and Green proposed that they leave the company property to settle the matter.

Swallows slapped Green again, and then turned and walked away. Green became infuriated, followed Swallows, and kicked her in the back. The two fought for about four minutes.

Later that day, human resource manager Joe Rogalski called Green and Swallows for separate meetings to talk about the incident. Rogalski had talked with witnesses to the incident, and their accounts gave conflicting reports as to who had struck the first blow. Because he could not determine who had started the incident, he had no recourse but to fire both of them. He advised them that they could file a grievance if they chose. At the end of the day, Green and Swallows met at the time clock. Green accused Swallows of lying and told her, "Sooner or later I'll beat the hell out of you."

The next day, Green telephoned the plant and told the human resource department's secretary that she was going to file a grievance. The Union Grievance Committee members was meeting that morning at the plant cafeteria. Green went to the meeting and spoke with grievance committee members Jack Nolan and Joe Caldwell about filing a grievance. Nolan told her to see union secretary Sue Cogdill. She spoke to Cogdill who told her, "We'll take care of it...just go up to the cafeteria and wait for me."

Earlier that same day, Swallows had met with the Union Grievance Committee in the cafeteria and had given her version of the incident. Green was later asked to give her version to the same group. Green believed that by meeting with the Grievance Committee she had officially filed a grievance. She then left the plant.

A week later, Swallows returned to work and Green was told by friends about Swallows's reinstatement. Green went to the plant to inquire about her grievance and was informed that no grievance had been filed on her behalf. She then confronted Cogdill and asked why her grievance had not been filed. Cogdill replied, "That's not normally my duty." Green then spoke to Rogalski, who explained that he could not rehire her because he had no written grievance from her. When she reminded him that she had told him earlier that she wanted to file a grievance, he responded that even if she had filed one, it would not have mattered because he and Cogdill had discussed the situation and decided to rehire Swallows. Green believed that her rights under the LMRA had been violated and filed a charge of an unfair labor practice with the NLRB, alleging lack of fair representation by the union.

Questions:
1) What are nonunion employee rights under the LMRA?
2) What is meant by the union's duty of fair representation?
3) When had the union met its obligation of fair representation?
4) Has the union in this case met its fair representation obligation? Explain.

11.3
The origin of this matter of arbitration is the following grievance filed on January 15, 2009:
On 4-25-08 due to circumstances beyond my control I (Bob Boyce) was involved in a job-related accident leading to an injury. Negligence and disregard for safety by Management created an unsafe work environment. Information on defective equipment was not give to employees by Management. Therefore, hazards remained when injury occurred. Only then did Management respond to correct problems.
I was denied work due to restrictions from M.D. I am filing for for 26 weeks employee contributions to his medical insurance and adjustment to my vacation checks. Compensation for other has been given in the past.

In a letter dated March 20, 2009, the company responded:
This regards Grievance filed by Bob Boyce who has requested to be reimbursed for the 26 weeks of employee contributions to medical coverage and adjustment for vacation pay during this recent absence due to an injury. The Grievance feels that since the injury was beyond his control, he should be compensated for all loses.
As a practice, the company does not require an employee who is out of work (regardless of reason) to keep contributing to their portion of the medical coverage during their absence. After the employee returns, he is required to "catch up" the back payments over a period of time. In the following year, vacation pay is calculated on the basis of total wages earned for the 52 weeks period preceding the vacation eligibility period (anniversary date). If the Grievant was out of work (regardless of the reason) his total wages would of course be less than normal.
The company has made only a couple of exceptions to the policy relative to the medical contributions in the past: two occasions when employees did not return to work from an injury and/or accident. Both of these cases were under extenuating circumstances, not as in the present case. The Grievant argued that since he was not at fault in his incident, he should be granted the same considerationas the previous cases. I do not think it will be productive to gent into the practice of having to argue facts of eat granting the special request. Similarly, the Workers Compensation program is also a "no fault" system where the company is responsible for paying for the claims regardless of who is at fault. Therefore, I am not inclined to start a different practice at this time.
The Grievant is also arguing that, since the accident was "not his fault". He should be compensated for the loss of earnings that would have otherwise been considered in calculating his vacation pay for the following year. This would establish a completely new practice to administer in the future.
As I review the current Labor Agreement, I cannot find a provision that obligates the company to reimburse the grievant for either of his requests. The actions of the previous cases were above and beyond our contractual obligations and should not be construed as a precedent for other cases.
Based on the reasoning previously cited, I must deny the grievance.

Issues
Whether the collective bargaining agreement between the parties obligates the employer to pay for the employee's contribution for medical coverage during the time he was on worker's compensation leave and to adjust the employee's vacation pay to credit him for time he was out on leave.
If so, what is the remedy?

Relevant Provisions of the Agreement
Article 15: Vacation

Employees will become eligible for vacations with pay on the following bases:
1) Eligibility, time lost as a result of a work related injury will be counted for the purpose of determining 1040 hours of work during the fifty-two (52) week period.
2) Continuous Service
For the purpose of computing vacation eligibility:
a)Time lost as a direct result of illness or accident shall not constitute a break in continuous services for twelve (12) moths of such time lost.
b) Absences due to leave of absences which do not exceed three (3) months shall not constitute services. However, that period of absence from this cause in excess of one (1) month shall not be counted in computing continuous service for vacation, and an employee's anniversary date will be charged accordingly.
c) Termination of seniority as provided for an Article 7, Section III (e), shall constitute a complete break of continuous service and no past service shall be credited in the event of re-employment.

3) Vacation Pay
a. Employees will qualify for six (6) weeks of vacation on the twenty-fifth (25th) anniversary of the date from which their employment is continuous provided the employee has completed at least 1040 hours of work during the year immediately preceding such eligibility date. In such instances, vacation pay will be an amount equal to twelve (12) percent of the employee's total wages earned by the employee during the calendar year immediately preceding the year of his current eligibility date or 240 times his permanent hourly rate as of the date he became eligible, whichever is greater.
b. Employees separated from the payroll and who have previously qualified for at least the first week of vacation shall received pro rata vacation pay for unused vacation at the rate of three and one-half (3 ½) times their regular hourly rate per week of eligible vacation, for each month of continuous service since the last vacation eligibility date.
c. Vacation payment will not be made earlier than the week immediately prior to the vacation period.
4) Vacation Period
a. In a vacation,
One (1) week is defined as seven consecutive days;
Two (2) weeks as fourteen (14) consecutive days;
Three (3) weeks as twenty-one (21) consecutive days;
Four (4) weeks as twenty-eight (28) consecutive days;
Five (5) weeks as thirty-five (35) consecutive days;
Six (6) weeks as forty-two (42) consecutive days;
b. The anniversary date of employment or the date if changed under 2 of this article, each year shall be the date upon which an individual employee becomes eligible for this vacation. Vacations must be taken during the twelve (12) months' period following the date on which the employee has qualified. Vacation periods are not cumulative and are not transferable.
c. The company will schedule the vacation period for each employee as well as generally administer the vacation plan. Employees may schedule one week of their vacation "one day at a time." Insofar as is practicable, consideration will be given to individual employee preference in scheduling vacations on the basis of mill seniority, provided the request is made prior to March 1 each year.
d. The company may, at its option, elect to shut the mill for one (1) or two (2) week period and require the vacation for which any employee is qualified to be taken. The company will sincerely try to give as much notice as possible to employees, should the above decision be made.

Article 19: Health & Safety
The company will earnestly continue its efforts on behalf of the health, sanitation, and safety of employees during the hours of their employment. The company and the union agree to cooperate in achieving this. The union will cooperate in encouraging compliance with the rules regarding health, safety, and sanitation.
The company will continue in effect the Group Insurance Program and Retirement Plan during the life of this Agreement.

Positions of the Parties
The Union
The union stated that Boyce is an exemplary employee with 27 years of service at American Newsprint Corporation. On April 25, 2008, Boyce was injured on the job when the automatic door malfunctioned. Issues with the doors had been reported to management on numerous occasions. The injuries sustained cost Boyce six months of work, which resulted in lost income in wages as a result of Workers' Compensation, and those lost wages adversely affected the calculation of vacation pay for the next year.
The union closed:
For the foregoing reasons, the union requests that the grievance be sustained and the Grievant, Mr. Boyce be made whole for his losses.

The Company
The company's maintenance department as well as department supervision tried on several occasions to correct the defect in the doors and were unable to do so.
The company communicated to all employees and alerted them to stand clear of the doors and to be on alert. The company was eventually able to resolve the issue with some electrical modifications to the doors.
The grievant argued at step 2 and step 3 of the grievance procedure that past practice was the basis for his complaint. The union failed to show that a past practice existed for either of Boyce's request, that is, reimbursement of insurance contribution during his absence or a pay adjustment for vacation.
Ms. Joyce Rambo confirmed that she had always required reimbursement of employee contributions to medical insurance upon return to work and that she has never made an adjustment to the vacation provisions as argued by Boyce. Ms. Rambo confirmed that Boyce's case was handled in the same manner and with the same consideration as similar cases in the past. Two employees mentioned by Boyce never returned to work after their absences for the deductions to be made. Additionally, Rambo confirmed that she has never made vacation adjustments, as stated by the grievant in the step 2 grievance. The consistency in administering this policy has never been made on the basis of who was at fault in the accident.
The company argued that this is a case in which the union is trying to seek through arbitration what is has not obtained in negotiations. The union failed to show that the CBA contains language that would require the company to pay Boyce. Therefore, the arbitrator should not give the union something in this arbitration that it did not obtain in negotiations. The company has held several negotiations since the insurance contribution requirement was introduced, and this request has never been introduced. The union is in effect asking the arbitrator to add an additional benefit to the labor agreement, which bypasses the negotiations process and is beyond what the law requires.
The company requested that the arbitrator uphold the company's position in this matter.

Questions:

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?

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* How effective are the grievance and arbitration processes?

According to issues discussed in case studies 10.2 and 11.3, the grievance and arbitration processes appear reasonably effective, and there are dozens of laws and solutions to protect workers fairly. What do you think?

10.2. Questions:

1) What are nonunion employee rights under the LMRA?

According to law firms, under the Labor-Management Reporting and Disclosure Act (LMRDA), nonunion employee still have rights since, "[they] make up a majority of U.S. workers and are entitled to similar workplace protection. Rights include the right to discuss, or take action to improve the terms and conditions of their jobs.

- See a long list of rights:

http://www.mypersonnelfile.com/employee-right/employees-right-on-union-group-activity

- ...

Solution Summary

Solution discusses Case Study responses to the following questions:

How effective are the grievance and arbitration processes? Refer to the issues discussed in case studies 10.2 and 11.3 and the video links below. Refer to the questions found at the end of the case study to help you think about your answer to the question above.

Questions:
1) What are nonunion employee rights under the LMRA?
2) What is meant by the union's duty of fair representation?
3) When had the union met its obligation of fair representation?
4) Has the union in this case met its fair representation obligation? Explain.

Questions:
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?

$2.19