International Brotherhood of Electrical Workers, AFL-CIO

10/14/19, 8)46 PMArbitration Case 1 (Brief): MAN6297 RXX RXS 1198

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Arbitration Case 1 (Brief)

Due Oct 11 at 11:59pm Points 20 Questions 4 Time Limit None Allowed Attempts Unlimited

Instructions

Score for this attempt: 20 out of 20 Submitted Oct 11 at 9:46pm This attempt took 18 minutes.

Complete this quiz before attempting Arbitration Case 3 (Brief). By completing this quiz in its entirety, you will receive 20 points. After you have completed this quiz review the answers. Then, complete the Case 3 Brief.

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Grievance Arbitration Exercise 1

In the Matter of Arbitration between

International Brotherhood of Electrical Workers, AFL-CIO, Local 400,

–and–

ABC Wire Making Company

The Issue

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10/14/19, 8)46 PMArbitration Case 1 (Brief): MAN6297 RXX RXS 1198

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At the outset of the hearing the parties stipulated the issue to be as follows: Was the company’s decision to hire Mitchell Carey as a primary operator of the dual-head extruder in violation of Article 10, Section 1(d) of the collective bargaining agreement? If so, what shall be the remedy?

The Facts

On September 26, 2016, the company posted job openings for three shifts for the position of Grade 3 Dual-Head Extruder/Primary Operator. Two employees bid for and were placed in these positions. The company then sought applicants from outside the company for the third position and hired Mr. Mitchell Carey. On October 28, the day after Mr. Carey began work, the union filed a grievance claiming the company violated Article 10, Section 1(d) of the collective bargaining agreement by not offering the job to Mr. Michael Seiss, the most senior maintenance mechanic who was on layoff status at that time.

Article 10.1(d) reads as follows:

If the job is not filled by (a), (b), or (c) above, the Company may select from the callback list the employee who, in their opinion, is the best qualified for that job; and if, in their opinion, no one is qualified, the Company may hire a new employee.

The union agrees that the company properly followed the procedures called for in paragraphs (a), (b), and (c) of Section 1 of Article 10. Therefore, the dispute focuses on the company’s application of paragraph (d).

The Union’s Arguments

Michael Seiss testified that he has worked for the company as a maintenance mechanic for eight years. As part of this job he has had responsibility for maintaining, repairing, setting up, and installing machinery in the plant. He also testified that he has done this work on machine #802— the dual-head extruder. While Mr. Seiss testified that he has not set up or run this particular machine by himself, he said that he has set the dies and heat temperature controls and has observed the extruder in operation. It is his belief that he could run this machine. Mr. Seiss also indicated that he was on layoff from September 2006 to February 2007 and would have taken the dual-head extruder operator job if it had been offered to him.

10/14/19, 8)46 PMArbitration Case 1 (Brief): MAN6297 RXX RXS 1198

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The union argues that maintenance mechanics are qualified to do the job in question and that the company should call back any employee who is qualified for this job before hiring from the outside. Therefore, the union requests that Mr. Seiss be made whole for lost wages and benefits from October 27, 2016, to the time of his recall in February 2017.

The Company’s Argument

The company argues that the job of extruder operator requires a more complex level of skill and expertise than do other machine operator jobs in the plant. A letter of agreement on skill progression rates contained in the collective bargaining agreement is cited as evidence for the high level of skill required. That letter provides for a pay rate increase of 20 cents per hour for each year of experience in this job title.

The company’s central argument is that Article 10, Section 1(d) indicates that the company may, but is not required to, recall an employee from the callback list after it has complied with the procedures outlined in paragraphs (a), (b), and (c). It stresses that the word “may” in paragraph (d) should be taken for its plain meaning, particularly since it contrasts with the words “shall” in paragraphs (a) and (b) and “will” in paragraph (c). Thus, the company argues that it had the discretion to decide whether any current employees were qualified to perform the job of extruder operator.

The company further argues that it did not act in an unreasonable or arbitrary fashion in deciding that Mr. Seiss’s experience as a maintenance mechanic did not qualify him to operate the dual-head extruder. As noted in the letter of agreement cited above, the dual-head extruder job is critical to the plant’s operations and, in the company’s opinion, requires a higher level of skill and expertise than the other machine jobs in the plant. Mr. John Reilly, Director of Human Resources, testified that he and the company’s personnel manager reviewed the employees on layoff status and concluded that, in their opinion, none was qualified for this position or could do the job without extensive training. The company also notes that Mr. Seiss had never run nor been trained on this machine. The company rejects the view that he was qualified to operate this machine because he had worked on it in his capacity as a maintenance mechanic. The company further notes that Article 9, Section 2 of the collective bargaining agreement states: “to be qualified, an employee must be able to perform the job without assistance. . . .”

10/14/19, 8)46 PMArbitration Case 1 (Brief): MAN6297 RXX RXS 1198

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Question 1

Your Answer:

What is the company’s contractual responsibility in this case?

The company’s contractual responsibility is to evaluate all eligible candidates in house prior too outsourcing. Also, has to qualify past employees who have backgrounds in the job being offered. If after doing those tasks they find that they have not found an eligible candidate in house, they may proceed with outsourcing a new candidate.

The critical language is in Article 10 1(d), which reads, “the Company may select from the callback list the employee who, in their opinion, is the best qualified for that job; and if, in their opinion, no one is qualified, the Company may hire a new employee.”

Question 2

Your Answer:

Who has the burden of proof of the current employee’s (Mr. Seiss’s) ability or inability to perform the vacant job?

In this case the Union has the burden of proof of Mr.Seiss’s abilities and inabilities to perform the vacant job. They have taken his testimonials of what his job encompassed and how he performed.

10/14/19, 8)46 PMArbitration Case 1 (Brief): MAN6297 RXX RXS 1198

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The language in Article 10 1(d) gives the company discretion in deciding whether they choose to select from the callback list and deciding who is the best qualified for the job. Thus, the burden falls on the union to establish Mr. Seiss’s ability to perform the job.

Question 3

Your Answer:

Assume you are the arbitrator. What would you decide?

I would decide that the company had the right to hire an outside candidate because for starters, Mr. Seis was on layoff. Just because his tenure is considered seniority, that does not mean that he can perform the job to the standards set. It is also stated that one should be able to perform the job duties and responsibilities without assistance or extensive trainings. With that being said, there was no reason to call back Mr. Seis to the job is he did not fully qualify for the job at hand.

10/14/19, 8)46 PMArbitration Case 1 (Brief): MAN6297 RXX RXS 1198

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An arbitrator’s first responsibility is to read and interpret the terms of a contract and to apply the plain and ordinary meaning to its wording. The word “may” followed by the phrase “in their opinion” contained in Article 10 1(d) clearly gives the company the discretion to decide whether anyone on the callback list is qualified to fill a vacant job. In this case, the company decided maintenance mechanics were not qualified for the dual head extruder position because of the complex skills and experience required for this job. Furthermore, there is no evidence that the company acted in an arbitrary fashion in reaching this judgment. The company had the right to form its opinion, it did so, and as provided in the contract it then had the discretion to hire a new employee. The quality or subsequent job performance of the new hire is not relevant to the issue in this case.

The company did not violate the collective bargaining agreement when it hired Mitchell Carey as a dual head/primary extruder operator. The grievance is therefore denied.

Question 4

Your Answer:

Assume you were brought in as a human resource consultant to the company and the union following this case. What changes in practices would you recommend to avoid disputes like this in the future?

If I were brought in and had to make changes in the practices, I would recommend to not enforce the evaluation of past employees for new vacancies. This creates issues because there is a reason they are no longer with the company. I would also be more detailed in regards to the standards of the job requisition and be firm in regards to what kind of experience is informed.

10/14/19, 8)46 PMArbitration Case 1 (Brief): MAN6297 RXX RXS 1198

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The company has an interest in having well-trained employees available to fill new highly skilled job openings. The company also would like to keep up the morale of its hourly employees and could do so by providing opportunities for advancement and promotion for these employees. The union also has an interest in the career development of its members. The parties could develop training programs and career development counseling for the hourly work force. Improved information regarding job vacancies and upgrading opportunities would help satisfy the hourly employees and the union, while also serving company interests.

Survey Score: 20 out of 20

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