2.

How would you suggest that unions and employers improve their ability to correctly interpret the collective agreement?

From the perspective of employees, one of the principal benefits of collective bargaining and union representation is assuring a reasonable balance of power between labor and management in workplace decision-making. Many collective bargaining agreements attempt to achieve such a balance by, among other things, giving employees the right to participate in certain decisions about how work will be assigned, how jobs will be classified, and how workers will be paid. The collective bargaining agreement at issue in Case Study 11-1 attempts to strike a balance between giving employees a role in important decision-making while reserving traditional management prerogatives to control fundamental decisions about profit and loss.

The problem in Case Study 11-1 arises because the terms of the collective bargaining agreement are somewhat ambiguous about how certain decisions are classified and about which of those decisions are reserved to the exclusive discretion of management and which ones are reserved for collaborative decision-making between the union and management. Effective union participation in managerial decision-making is only possible when the provisions of the collective bargaining agreement are absolutely clear about how decision-making authority is to be allocated. In this case, the ambiguity relates to the distinction between decisions about delegating certain categories of work to contractors, over which management has sole discretion, and decisions about creating new jobs, in which employees have the right to participate.

Management justifies its decision to contract out janitorial work by relying on Article 4.1.2 of the collective bargaining agreement, which provides that the "rights of management" include the "right to direct the working forces, including the . . . introduction of new, improved, or different production, maintenance, service, or distribution methods or facilities, the placing of production, service maintenance, or distribution work with outside contractors or subcontractors. Management...

In deciding to contract out janitorial work, management created new duties for contract janitorial workers, which it apparently identifies as part of developing a "new, improved, or different" method for providing maintenance and service.
From the union's perspective, management's decision is problematic because it appears to create a new job. Article 19.1.1 of the collective bargaining agreement provides that when the company creates "new departments and/or jobs," the union has the right to request that the new jobs should be reviewed by the joint union-management Job Evaluation Committee, in the event that the employees wish to challenge the company's own evaluation of the job. The union understands the company's decision about the reclassification of janitorial functions as the creation of a new job and/or department, which stands alongside an existing job classification, that of foundry janitor. Thus, the union believes that the company improperly failed to submit its decision about janitorial jobs to review by the Job Evaluation Committee.

The conflict between the union and the company could be avoided by more precise drafting in the sections of the collective bargaining agreement in which the respective provinces for management and the Job Evaluation Committee are defined. There is a fine line between developing a new method for performing an existing job, such as the position of janitor, and creating a new job. If the relevant provisions are drafted with a keen eye towards the specific realities of the company's business, union and management can achieve more clarity about the kinds of decisions that management makes and the way in which decision-making authority will be allocated between the company and the union.

Works Cited

Richard S. Rosenberg, Matthew T. Wakefield and Sabrina A. Beldner. "Courts Flip-Flop on 'Weingarten' Rights for Nonunion Employees." Accessed at http://www.brgslaw.com/articles/Weingarten.html (November 7, 2010).

IBM Corp., 341 NLRB No. 148 (2004).