Labor and union studies

Grievances and the (Mis)Interpretation of Collective Agreements

In this scenario of rather childish violence in the workplace, it is unfortunate that Green -- who according to this account did not strike the first blow -- should be fired while Swallows was reinstated, but the fact is that Green never truly filed a grievance, and therefore had not officially challenged her dismissal. Even had she done so, as she believed she had, the union was under no obligation to her in attempting to help her win her job back. Green's right to join the union is protected by Section 157 of the Labor Management Relations Act (LMRA); she had presumably chosen no to be represented in the union's collective bargaining, and was offered little or no protection from the organization because of this choice. The only quasi-reasonable claim Green has is that the union somehow coerced the employer to reinstate Swallows (a union member) over Green, which would have been illegal according to Section 158, sub-section b, paragraph 2 of the LMRA, but there is no evidence of such coercion.

The union does have a duty of fair representation, meaning that it cannot use its power with management or with labor to the detriment of non-union employees (in opne-shop situations, obviously). In reality, of course, this is impossible and impractical; the collective bargaining of the union is engaged in specifically for the benefit of union employees, and can often result in labor contracts that differ in certain areas from non-union contracts with the same employer. The duty of fair representation extends to the degree that unfairness is possibly and practically mitigated. Coercing an employer to fire a non-union employee and keep a union member when both were guilty of the same transgression would not be legally (or ethically) acceptable, but again there is no evidence of this here. The representative and management arrived at their conclusion after hearing both sides of the story (and from several other witnesses, as well), and their decision seems to have been based on careful reasoning rather than any biased representation.

To this same end, the union has met its obligation of fair representation when it has applied the same standards of unfair labor practices, whether in regards to the terms and conditions of employment or to the circumstances surrounding a specific termination, to both union and non-union employees. That is, the union must work to ensure that all workers are granted equal opportunity within the company, and cannot allow non-union members to be subjected to unfair labor conditions and/or practices any more than they would let union members be subjected to the same conditions. There are many instances where unions specifically do not protect non-union employee's interests -- with wages and other areas of collective bargaining, specifically -- but this is not done (directly, at least) to the detriment of non-union employees. They simply miss out on the benefits, and avoid paying dues. This is the very essence of the democratic and capitalist system of trade unions in open-shop scenarios.

In this instance, it is abundantly clear that the union has met its obligation of fair representation. It does appear as though the union representative -- and management, it should be noted -- felt that Swallows was less at fault for the incident and more deserving of reinstatement than Green. Union membership does not appear to be the deciding factor in the issue, however; in fact it hardly seems to have been taken into account. This is the only accusation Green could possibly level against the union, and from the facts presented it is a losing case.

Case Study 11.1

Despite the many accusations of the union, the basic issue in this instance is whether or not the company had a legal right, according to its contract with the union, to contract out its janitorial jobs and effectively eliminate these positions within the company itself. The union, as the filer and continued impetus behind the grievance, has the burden of proving that the company in some way violated its labor contract in so doing. The level of proof needed is fairly basic; the contract can be carefully read by the arbitrator, and any actions that were illegal according to the terms of the contract could be identified. The burden of proof must lie with the union just as an alleged criminal is supposedly "presumed innocent until proven guilty" -- it is a basic logical necessity. The company can no more prove that it has not violated the contract and more than a suspect can prove he did not rob a bank (for exmple); it is impossible to prove a negative. If the contract had been violated, there would be clear evidence of this for the union to point to.

Instead, the union's accusation is full of inferred motives and presumed intentions of the company. It is even possible that these accusations are true, and that the company was not acting in good faith during the reevaluation of the janitorial jobs. This is not an issue of good faith, hwoever, as it was not an instance of collective bargaining. The union was attempting, after the evaluation, to enforce a rage increase as stipulated in the already-bargained contract. The company enacted their right, stipulated in the same contract, to contract the work out rather than pay a higher wage. This might be disadvantageous to the company in the long run, but it does not violate the contract. As a general guideline, the union could insist in fewer contracts that any proposals by the company to contract out work for jobs formerly held by union employees, or that replace jobs held by union employees (in the case of reevaluations), must be bargained for by the union first (i.e., the union has a chance to bargain for any jobs that might be lost to subcontractors). A relatively simple clause in the labor agreement could achieve this, to the benefit of both parties.