NYSASPA Conference
November 3, 2015
Developed by Cornell ILR School’s
Scheinman Institute on Conflict Resolution
Dan McCray
danmccray@cornell.edu
1
Contract Interpretation
2
Plain Meaning Rule
Where the language of the agreement is clear and
unequivocal, the arbitrator need look no further than
the content of the language to reach his/her decision.
Fairweather’s Practice and Procedure in Labor Arbitration
Look at
Four
Corners
3
Give
Language
Plain
Meaning
Is the
Language
Clear?
If yes, then
enforce
Find the Ambiguity
I fed her cat food.
4
Find the Ambiguity
The plant manager may decide whether or not to
shut down a job that appears unsafe. The safety
manager may also shut down operations if he
considers it unsafe. An employee displaced
thereby shall receive his regular rate if
transferred to a lower rated job until returned to
his regular position.
5
If Language is
Ambiguous
Past Practice/
Application
Bargaining
History
Notes
Previous Final Step
or Arbitration
Decisions
Testimony
Evolution of
Proposals
6
Past Practice in Labor Relations
Past
Practice
Interpretation of
Ambiguous
Contract Language
CBA
Grievance
7
Term &
Condition Of
Employment
Binding Past Practice
NLRB/PERB
CBA
ULP/ICP
Grievance
Non-Interpretative, Binding Past Practice
The “4 C’s”
MUST BE:
Clear
Continuing
Consistent
Consensual
Additional
Principles
Past Practice only as wide as circumstances that
created it
Clear contract language trumps past practice with
notice
Sub-Units: is it an issue that would normally be
handled at a sub-level
8
Impact of Past Practice
Past
Practice
Used to interpret
ambiguous contract
language
Creates terms and
conditions of
employment that
can not be changed
unilaterally
“Ripens” to a
contractually
protected right
9
Past Practice
1. The understood and accepted way of doing things over an extended period of time. There
should be … clarity and consistency … longevity and repetition … and acceptability.
Mittenthal, Richard. Past Practice and the Administration of Collective Bargaining Agreements,
The Proceedings of the National Academy of Arbitrators 1961, p. 30 (BNA 1961).
2. For a practice to be binding on both parties it must be (1) unequivocal (2) clearly enunciated
and acted upon and (3) readily ascertainable over a reasonable period of time as fixed. Matter
of Cellanese, 24 LR 168, 172 (Justin, Arb. 1954).
3. In order for past practice to be binding, it must first be established that a
past practice exists and second that it represents a mutually agreed upon
response to a particular situation. T. Bornstein, A. Gosline, and M.
Greenbaum, Labor and Employment Arbitration, §§ 10.01[1], 10.02 [1]-[2].
4. Clear and consistently applied practice that has existed over a significant
period of time with the knowledge of both parties such that they are
deemed to have acquiesced in it. 2005 AAA LEXIS 27 (Drucker, Arb. 2005)
5. [A] practice of long-standing, frequently recognized and mutually adopted.
2005 AAA LEXIS 228 (Bornstein, Arb. 2005)
10
Past Practice vs. Past Application
Contract
Date
Before=Past
Practice
11
After= Past
Application
Contract Construction Questions
Question 1
Article 6, Section 3
“The employer must provide employees with three days’ notice of change in
shift starting time.”
Issue: Did the employer violate the CBA when it notified an employee of a
change in shift starting time on Monday morning by leaving a voice mail
message for the employee on his home voice mail on Friday evening?
Question 2
“All required uniforms shall be furnished and laundered by the Company.”
Issue: Did the employer violate the CBA when it required employees to
wear brown skirts/pants and did not furnish those pants to the employees?
Question 3
Article IX.
“The preceding paragraph will not be construed to mean that non-bargaining
unit employees must refrain from any work or action which could alleviate
an emergency. An example of an emergency is moving aircraft when a
storm is approaching.”
Issue: Did the employer violate the CBA when supervisors (non-bargaining
unit employees) moved aircraft due to an unexpected staff shortage and
exigent customer demands?
12
Question 4
Article V, Sec. 3
“Wages shall be paid for jury duty and/or the answer of a subpoena.”
Article XX
“Unit members will be allowed a reasonable amount of time off without pay for union business.”
Issue: Did the Company violate the CBA when it refused to pay the Union President for time
away from work when he was subpoenaed to attend a legal proceeding involving a lawsuit
against the union?
Question 5
Article 10
“Personal leave may be used for the following purposes: appearance at a judicial proceeding;
attendance at a closing of a sale for a home purchased or sold by the employee; graduation of a
member of an employee’s immediate family; or wedding of a member of the employee’s
immediate family.”
Issue: Did the employer violate the CBA when it refused to allow the grievant to use personal
leave to attend their parents’ anniversary party?
Question 6
“This Agreement, and the work described herein, shall apply to the New York City area.”
Issue: Did the Employer violate the collective agreement when it hired non-bargaining unit
employees to perform carpentry work in Westchester?
13
Question 7
Article 5, Section 3.
“Paid leave accruals will not be charged where the employee’s absence results
from blizzard, tornado, flood or other catastrophe.”
Issue: Did the Company violate the collective bargaining agreement when it
charged the employee’s sick leave allotment for an absence caused by a
serious traffic accident?
Question 8
Article 24, Sec. 2: Bargaining Unit Work
“The preceding paragraph will not be construed to mean that non-bargaining
unit employees must refrain from any work or action which could alleviate an
emergency. An example of an emergency is moving equipment when a storm
is approaching.”
Issue: Did the Company violate the CBA when non-bargaining unit employees
performed bargaining unit work to avoid penalties for late delivery of
equipment under a Federal contract?
14
Rules of Contract Construction
15
Rule 1:
The plain meaning rule.
Rule 2:
Construe the agreement as a whole.
Rule 3:
Give words their ordinary and common meaning.
Rule 4:
words.
The meaning of a word may be known from the accompanying
Rule 5:
Specific language supersedes general language.
Rule 6:
Give meaning to all words used.
Rule 7:
The expression of one thing is the exclusion of another.
Rule 8:
A general word following a specific list of terms will be construed
to encompass that which is similar to the preceding words.
Rule 9:
Disputed language must be interpreted in light of the law.
Parties are presumed to have intended a valid agreement.
Rule 10:
Avoid absurd or nonsensical results.
Rule 11:
Avoid forfeiture.
Rule 12:
Construe language against the drafter.*
You Be The Arbitrator
STORMY WEATHER
The Company operates a manufacturing plant in northeastern Pennsylvania and has had a collective
bargaining relationship with the Union-for many years. In January 2005, an ice storm in the area caused
many employees to report to work as much as several hours late. The Company did not pay employees for
the time they missed. As a result, in the negotiations for the next contract, the parties agreed to the following
provision:
Any employee who is late due to inclement weather shall be granted administrative leave with pay
for the time missed.
On a Sunday in February, the Grievant was returning in her car from a vacation in Florida, when the police
closed the roads in southern Pennsylvania because of an ice storm. The Grievant had to spend the evening
at a motel. She was unable to report to work until noon on Monday, and the Company refused to pay her for
the four hours of work she missed. The Union filed a grievance that has come to arbitration.
At hearing, the Company seeks to introduce, through its chief negotiator, a memorandum that the negotiator
sent to top management during bargaining. In the memorandum, the chief negotiator wrote as follows:
This provision will help allay the ill will that was generated following the storm of 2005. Of course,
administrative leave is dependent upon some sort of major, community-based weather event and
would not be available merely because, for example, traffic is moving slowly due to rain.
The Union objects to admission of the document, contending that the contract is clear, thereby barring any
extrinsic evidence. The Union also asserts that the document is irrelevant because it relates only to internal
Company communication and does not reflect anything that was said at the bargaining table. The Company
argues that the memorandum establishes context for the contract language and indicates the Company's
state of mind.
Question A. Do you admit the memorandum?
Question B: Regardless of whether you admitted the memorandum, is the Company required to pay
the Grievant for the four hours?
16
You Be The Arbitrator
DON'T DO AS WE SAY, DO AS WE DID
For the past 15 years, the parties' Collective Bargaining Agreement has had the following provision:
Article XII- Scheduling
Section 6: Temporary Schedule Alterations
No more than four times per calendar year, an employee may request that the start time for a single workday be
changed by two hours with a corresponding change in the end time. (For example, an employee whose starting time
is 8:00 a.m. may request to start at 6:00 a.m. and end the day at 2:00 p.m. or to start the day at 10:00 a.m. and end at
6:00 p.m.) Requests must be submitted in writing to the immediate supervisor at least two working days in advance.
Supervisors will respond to requests for schedule alteration by the end of the shift in which the request is received
and will allow the requested change unless the alteration will disrupt operations.
In May 2011, Supervisor Jones denied the requests of three employees who sought to alter their schedules to accommodate
family matters. (Each employee had requested to change hours on a different day.) Jones denied the requests because each
of the three already had been permitted to alter his or her schedule four times since January 2011. Thus, each of the three had
to take one-half day of leave, which may be taken in increments no smaller than one-half day.
The Union grieved and, at hearing, seeks to offer evidence establishing that, for the past 10 years, supervisors routinely have
granted schedule changes as many as 12 times per year for each of a number of employees. The Company argues that the
language of Article XII, Section 6 is clear and that, therefore, this evidence must be excluded. The Company also notes that
the contract contains a zipper clause. The contract contains no language addressing past practice.
Question A. Do you admit the Union's evidence of prior experience?
Assume that you allowed the Union to present the evidence. The Union established by specific and uncontested documents
and testimony that, in the workforce of 75 employees, various supervisors have allowed 10 to 15 employees per year to alter
their schedules more than four times per calendar year, and at least five employees per year were permitted to alter one day
each month. There was no evidence that any employee's request had ever been denied on the basis of exceeding four
schedule alterations per calendar year.
The Union argues that, through this past practice, the parties have engaged in a de facto amendment of Article XII and that the
Employer breached the contract by denying the five employees the schedule alterations. The Union asks that the arbitrator
restore to each of the three employees the leave he or she had to use when the schedule alterations were denied.
Question B. Do you sustain the grievance?
17
You Be The Arbitrator
Partially Personal
The 2004-2009 collective bargaining agreement between the school district and the union
representing bus drivers added a provision, Article XXI, which allows each driver to take "a
maximum of four days of personal leave per year." Article XXI also states as follows:
One of these days may be used at the bus driver's discretion. This discretionary day is to
be scheduled in consultation with the Transportation Manager. For the other three days,
the driver must check on a District-provided form one of 12 reasons for the leave. These
leave requests are to be submitted to the Superintendent for approval.
During the first year of the contract, the only personal days requested or approved by the
Transportation Manager or the Superintendent were for whole days.
In the second year of the contract, a driver asked to take discretionary day as two half-days. The
Transportation Manager approved the request. During the remainder of the second year, and
throughout the third year, other drivers made similar requests, all of which were approved by the
Transportation Manager. In the second year, 11 of 15 bargaining unit drivers requested and were
granted half-day increments. In the third year, 10 such requests were made and granted.
Eventually, the Superintendent learned that the bus drivers had been taking their discretionary
day in half-day increments. She distributed a memorandum prohibiting partial-day personal
leave. The Union initiated a grievance, now at arbitration, in which it claims that the policy
breaches Article XXI.
Do you sustain the grievance?
18
CBA Clause In-Depth
19
Just Cause
Good and
Sufficient
Reason
Due Process
Progressive
Discipline
Three Basic Principles of “Just Cause”
Just Cause
Evidence of
Conduct
Investigation
Rules
Proper Penalty
Seriousness of
infraction
Mitigation: Not
because of
Impact but
Intent
Prior history of
Discipline
Discipline for
others with
same infraction
20
20
Off-Duty Misconduct
Conduct
Nexus to
Workplace
Harm to Employer
Prevents employee
from doing job
21
Prevents other
employees from
doing their job
Harmful to
employer’s
business, product
or reputation
Non-Disciplinary Just Cause
Standard of
Performance
Opportunity to
Correct
Standard of
Performance
Is there
one?
Repeated
Failures
Can They Do
Another Job
Unilateral or
Bilateral
Was there
Evaluation or
Communication
If unilateral, must be
reasonable
22
Grievance Handling
23
Getting Started . . .
A grievance is . . .
_______________________________________________________________________
_______________________________________________________________________
___________________________________________________________________
The purpose of the grievance procedure is . . .
_______________________________________________________________________
_______________________________________________________________________
____________________________________________________________________
The Union files a grievance because . . .
_______________________________________________________________________
_______________________________________________________________________
____________________________________________________________________
Management’s goal(s) in the grievance process is/are . . .
_______________________________________________________________________
_____________________________________________________________________
______________________________________________________________________
24
The Organization-Centric Approach
“What can you
manage vs. what you
MUST bargain”
Managing
Strategy
Performance
Management
Grievance
Meetings
25
Labor
Management
Relations
Employee
Relations
Labor
Management
Meetings
The
Relationship
Labor Strategy
Substantive Contract= Rules of Employment
What
Where
Wages
Collective Agreement
Hours
Laws
Other Terms and
Conditions
Policies
Customs/Practices
26
Labor Strategy
Social Contract= Rules of the Game
With Union
Avoidance/ Containment
Compliance
Arm’s Length Negotiation
Commitment
Cooperation
27
With Employees
Labor Strategy
Strategies for Change
ESCAPE – the relationship
FORCE- change through concessions/quick
FOSTER- change through change in
relationship/not quick
28
Labor Strategy
Management Decision to Force/Foster: Which is better given the issues?
Amenable to Forcing: No Amenable to Fostering:
Cooperation Needed
Cooperation Needed
Wages
How smart an employee works
Benefits
Dedication of employee to management
goals
Time
Adaptability to new methodologies
Work Rules?
Employee work style
Changing how work is done
29
Labor Strategy
Union Decision to Force/Foster: Which is better given the issues?
Amenable to Forcing/ No
Cooperation Needed
Amenable to Fostering
Cooperation Needed
Wages
Respect
Benefits
Being Valued
Time
Settling issues at local level
Work Rules?
Delivering day to day issues
Other?
30
Labor Strategy
Decision to Force/Foster: Which is better given the issues?
Fostering
Commitment
31
Compliance
Forcing
Compliance
Labor Strategy
Which is better given Power?
Management
Forcing
Forcing
• Ability to impose
- Current Law
- New Law
• Ability to Withstand Industrial Action
• Ability to resist/impose
- Current Law
- New Law
• Ability to engage in Industrial Action
- Costs (Strikes not permitted under Taylor
(Strikes not permitted under Taylor Law)
-Costs
-Stakeholder Reaction
- Internal unity
32
Union
Law)
- Stakeholder Reaction
- Membership Unity
Fostering
Fostering
• Other side’s desire for cooperation
• Other side’s desire for cooperation
Organizational Strategy: Prioritizing Goals
?
?
Managing
Strategy
33
Employee and Labor-Management
Relations
Managing Strategy
Performance
Management
Labor
Management
Relations
Grievance
Meetings
Labor
Management
Meetings
The
Relationship
34
Employee
Relations
Getting Started
A grievance is . . .
 The purpose of the grievance procedure is . . .
 The Union files a grievance because . . .
 Management’s goal(s) in the grievance process is/are . . .
35
Grievance Topic
36
Management Interests
Union Interests
?
?
?
?
?
?
?
?
Grievance Procedures
Definition of a Grievance
Step 1 to Arbitration
Time Limits in Depth
37
Good Grievance Procedures . . .
38
Fair and
Equitable
Reasonable
Practical
Easily
Understood
Workable
Enforceable
Grievance Procedures . . .
Definition of Grievance
Version #1
“Grievance" shall mean, and be limited to, disputes or differences between the Company and the Union, or
employees so represented, with respect to the interpretation or application of any specific provision of this
Agreement.
Version #2
A “grievance” shall mean a complaint by an employee in the bargaining unit (1) that there has been as to
him/her a violation, misinterpretation or inequitable application of any of the provisions of this Agreement or
(2) that he/she has been treated unfairly or inequitably by reason of any act or condition which is contrary to
established policy or practice governing or affecting employees, except that the term “grievance” shall not
apply to any matter as to which (1) a method of review is prescribed by law, or by any rule or regulation of
the State Commissioner of Education having the force and effect of law, or by any bylaw of the Board of
Education or (2) the Board of Education is without authority to act.
Version #3
“Grievance" shall mean, and be limited to, disputes by employee(s) or the Union as to the application,
misapplication, interpretation or misinterpretation or meaning of any provision of this agreement or any work
rule impacting employees terms and condition of employment.
39
Time Limits in Depth
Version #1
(b) The time limits set forth above may be extended by mutual agreement of the parties. If either party
fails to adhere to the time limits set forth above, the grievance shall automatically proceed to the next
step of the grievance procedure. If the grievance is not resolved within the time limits set forth in Step 3,
either party may submit the dispute to arbitration within fourteen (14) calendar days.
Version#2
a. Failure at any step of this procedure to communicate the decision on a grievance within the specified
time limits shall permit the aggrieved employee to proceed to the next step. Failure at any step of this
procedure to appeal a grievance to the next step within the specified time limits shall be deemed to be
acceptance of the decision rendered at that step.
Version #3
(g) Failure of the Union or the Employer to process a grievance in the time frame stipulated shall
constitute abandonment of the grievance. If the grievance is abandoned by either party, then the Union or
Employer shall accept the abandoned request or decision as binding. Any abandoned grievance shall not
constitute a precedent.
40
Questions of Arbitrability
Arbitrability
Substantive
Definition of
Grievance
41
Affects Law
Procedural
Scope of
Arbitration
Clause
Grievance
Time Limits
Step Time
Limits
Two Types of Arbitrability
Procedural
Arbitrator
Decides
Substantive
Waived by
Action/Inaction
Arbitrator
"Can" Decide
(Sometimes)
42
Court
Can
Decide
Harder
to
Waive
Effective
Grievance
Meetings
43
• Listen
• Question
• Document
• Control
• Consider
Grievance Handling Guideline
Prepare
What is the big picture?
Seek information on union’s position, theory and interests
What are the true interests?
Articulate management’s positions and interests
Get the relevant facts and information from the best sources
Collect and compile all documents, witness statements, etc.
Investigate applicable “history.”
•The matter “at issue”
•The employee/supervisor/department
•Contract provisions
•Dates and time lines
•Operational needs
•Past practice/Application
Is the subject matter in dispute the proper subject of a
grievance?
Did the grievant comply with the contractual time frames
and steps?
Is there a practice of strictly following time frames and
steps?
44
At The Meeting
Grievance Handling Guideline
Meet
Adopt and adhere to cordial, businesslike approach.
Don’t fall in love with your position.
Stick to the subject of the grievance.
Are you missing the Big Picture?
Take notes.
Is there a way to solve union’s
problem in a way that works for you?
Probe for information.
Maintain professional demeanor
throughout.
Control the tempo and tenor of the
meeting.
Buy time if you need it.
Don’t “go through the motions.”
45
Analyze
Respond
Clear statement of union’s case,
including contractual provisions
allegedly violated, statement of facts,
past practice, etc.
Clear statement of all of management
arguments.
…Or settle.
Settlement
Settle
Contest
Likelihood of success
Do you lose more by losing than by settling
Can you get the same thing or more by settling (e.g., reducing disciplinary penalty)
Is the Union motivated by political concerns and is willing to settle on a non-precedential
basis and fix later
Do you have a relationship (or can create one) where you can “trade” different
grievances
46
Case One
Instructions: You are on the management grievance committee. Discuss the following issues
with your fellow committee members and reach consensus on a decision of how to handle the
grievance, along with the underlying rationale for the decision. In reaching your decision. Your
decision may be to deny or sustain the grievance, or that you need more information. If so,
please specify what information you need.
Case One
As a result of a security inspection performed at the exit gate to the facility, a pair of protective
eyeglasses was found in Grievant’s lunchbox. He was subsequently discharged from his
employment for removing Company property without authorization. Grievant’s employment
was terminated, effective August 1. On August 8, the Company received a letter from a private
attorney representing the Grievant. In sum and substance the attorney protested the
Company’s discharge decision as unduly harsh and argued that the facts did not rise to the level
of “theft.” On September 15, the Company received a formal grievance signed by the Grievant.
What is your Recommendation?
47
Case Two
The collective bargaining agreement provides that all hours
worked for which an employee receives pay shall be counted as
hours worked for purposes of calculating overtime. On May 23
2003, the Union filed a grievance challenging the Company’s failure
to pay for hours over 40 in a workweek and over 8 in a day. The
Union seeks that all union members be repaid all money due by the
company for miscalculation of overtime from March, 2002 to the
present.
What is your Recommendation?
48
Case Three
On July 1, ABC, Co. promulgated a policy prohibiting employees
from engaging in outside employment without prior
authorization of the employer. On August 25, the Company
denied the Grievant’ s request to continue to perform outside
work. On September 1, the Grievant and the Union filed a
grievance protesting the denial of Grievant’ s request and the
validity of the outside employment policy.
What is your recommendation?
49
Case Four
The Grievant was discharged from her employment
effective July 2. A grievance protesting the
discharge was filed July 6. The union argues that the
discharge must be overturned because the grievant
was denied her right to union representation during
the company’s investigation of the misconduct
which ultimately led to the grievant’ s discharge.
What is your recommendation?
50
Case Five
At Thanksgiving time for the last 15 years, the Company
provided free turkeys to employees at its Warsaw, Indiana
facility. The Company discontinued this tradition this past
Thanksgiving. The Union filed a grievance protesting the
discontinuation of the practice. The Company dismissed
the grievance at Step 2 because it was not a proper subject
for the grievance procedure.
What is your recommendation?
51
Case Six
The grievant failed to specify the article of the contract
alleged to have been violated, as required by contract and
the grievance form. The Company dismissed the grievance
at step 2 because it was procedurally defective.
What is your recommendation?
52
Case Seven
The grievance applied for promotion to maintenance mechanic on April 4. The
position was awarded to another bargaining unit member effective May 15.
Grievant became aware that he did not receive the promotion on May 16. On
June 21, the grievant filed a grievance protesting the Company’s decision. At
the grievance meeting, the union acknowledges that the grievance was not filed
within contractual time limits, but has produced evidence of approximately 20
grievances in the last 3 years that were untimely filed, but processed without
reservation or objection by the Company. In addition, the Union has produced
evidence of 10 incidents in that same time period in which the Company has
failed, without consequence, to satisfy time limits for responding to grievances.
What is your recommendation?
53