Case 10-1: Are these Grievances Arbitrable
1. Assessment of the union’s argument that the parties have always agreed to extent timelines.
Grievances are usually regulated by strict timelines and can be struck out on technicalities. Untimeliness is one of the technicality that a union should well be aware of. The argument that the parties always extent timelines does not hold to the extent that it suggests the union ignored existing provisions in the contract agreements to be guided by presumptions. The arbitrator is limited to the provisions of in the contract and anything outside of it are largely immaterial. If one of the parties has not agreed to a timeline extension then the union should not try to put the arbitrator to accept an extension in the place of the company which does not approve of it
2. Should the arbitrator be influenced by reasons for termination of the two employees?
Yes, the arbitrator must cast his net wide to look at all factors that have a bearing on the cast. This is because arbitration is supposed to serve to prevent litigation in court. The arbitration should therefore look at how the two were discharged and whether it was irregular. Arbitration clauses may perpetrate injustice if they result to infringement on the basic and vital rights of employees. Since the employees are the main reason why the arbitration process is being invoked, the grievance cannot be rendered inarbitrable without looking at the reasons for termination. This could be the basis for allowing the arbitration process to go on. A need to be substantive should be given precedence over timeline technicalities (Lewin 120).
3. Company’s best evidence and arguments
The company’s argument borders on timelines and it moves a powerful motion when it states that when the union meets guidelines of timelines, it always moves into arbitration in good faith. It then proceeds to caution that interpretation of the issues between the two parties are subject to the employment contract which bars the arbitrator from manipulating its provisions (Fossum 5). This is to mean that if the arbitrator allows the arbitration to proceed, he will have contravened the ten-day deadline provided in the agreement and assumed powers that the contract does not grant. Showing that the company subjects itself to grievance procedures are procedural is powerful and the arguments around that are entrenched in contract agreement provisions.
4. Union’s best evidence and arguments
The union makes an effective argument when it suggests that it was engaging in contract negotiations with the company the reason for which it sought deferral. It goes on to state that the contract negotiations have in some instances led to settlement of grievances. An important statement made to this effect is to portray the hypocrisy on the part of the company to engage in a negotiation process of a grievance that it would later regard as untimely. The evidence presented with regard to the number of deferrals is also powerful in demonstrating that, in fact, extension of timelines has become a conventional practice characterizing the kind of engagement the company has with the union.
5. Are these grievances arbitrable?
Yes, they are arbitrable since it can be proven that the company has in the past not had a problem with accepting extensions. The union has presented evidence to the effect that the company has ongoing deferrals and hence this timeline provisions do not hold primal importance over the content of the grievance. The arbitration will go on in order to allow deliberations on the reasons for termination and ensure a reasonable conclusion of the process. The arbitration should allow for the process to be based on substantive justice rather than being based on procedural technicalities that defeat the purpose of inclusion of arbitration clause (Lewin 126).
Case Study 10-2: Should Union Represent Willie
1. Argument for representation without paying
Once a union has been elected to be the official representative of employees in a particular department or unit in grievance-arbitration issues, all employees in the department enjoy what is termed as exclusive representation. Willie is aware of this and understands that the union was elected to represent the unit and is by law obliged to represent them all whether they are paying or not (Edwards 885). This is a duty upon the union to represent non-members with equal commitment and fairness as members and hence this will not require Willie to pay in order to secure representation from the union (Fossum 5). It is the responsibility of the union to ensure that it persuades the members of the unit to enroll for deductions since they are not obliged to. Whatever privileges paying members enjoy in the unit, non-paying members enjoy too.
2. Arguments by union members for Willie to pay for the costs of representing him.
The members cite Willie’s unwillingness to join the union. When an election was being taken, he did not stand up in support of the union. He in fact spoke against the union in a way to suggest that he will never require its assistance. He therefore personally does not recognize the importance of the union and as he is not willing to pay remittances to the union at all. This means that he wants to enjoy the services of the union at this stage as a free-rider which other union members perceive as parasitic. To be represented at the expense of other employees and having the right to complain if the representation according to Willie is unsatisfactory is unfair to the paying workers.
3. Is the adopted proposal fair?
Yes it is fair to Willie and to union members, since the union members are saved meeting the grievance-arbitration costs of a non-paying member. Still Willie is afforded the representation he is entitled to under exclusive representation.
4. NLRB rule on failure to represent Willie
NLRB would have ordered the union to take up the case and requiring the union to not charge him or to only charge an amount proportional to the costs of the grievance-arbitration process. In the worst case, the board can order the union to compensate Willie for failure to represent him especially if chances are that had the representation been made, Willie would have gotten her job back.
5. How I could have voted
I would have voted to approve the proposal. This is because it fairly allots duty on both the union and the employee. Paying members meet the cost of representation through the dues. Willie also has to meet hers even as the union has to ensure it represents all the employees according to the law.
6. What I can do as a member of management
I will petition against the grievance process. This will be in the form of an injunction stating that Willie has breached labor contract terms that are clear and is not entitled to representation whatsoever by the union. It suffices to say he is not even a contributing member of the union after all. The rules for worker behavior are agreed upon by the union and hence are supposed to be enforced by both parties.