1 Organizational Government and Contract Administration A principle function of management is to...

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Organizational Government and Contract Administration

A principle function of management is to direct the workforce….Employee welfare is not their primary concern.

Remaining solvent and making a profit is…..people are one of the many means to that end.

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Unions represent the presence of a

force capable of preventing

management from disregarding the

interests of its workers.

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Many people feel it is pointless to live in

political democracy if the conditions of

their work life (in which they spend the

largest portion of their adult waking

hours) are dictatorial and deny freedom

and dignity.

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Enlightened policies by management, a

counter-force in the form of a union, or

both, can keep management from

destroying important human values in

the plant.

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The Concept of Industrial or Organizational Jurisprudence

The underlying idea is similar to that of

public government in a democracy in

that it is a “government of laws not of

men.”

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In particular, in the firm an employee

may be punished only for proved

violations of known rules or standards,

not at the discretion of a supervisor.

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Such conditions of law can exist

without a union, and where

management has established them the

urge of employees to unionize is

usually low.

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It is worth noting that many plants have a better system of Industrial Jurisprudence for non-supervisory employees than for members of management.

Managers - at all levels - often have little protection against arbitrary treatment.

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A significant difference between union and non-union jobs is access to Industrial Jurisprudence (due process).

This distinction is important because of a common-law doctrine called:

Employment-at-Will

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In the broadest sense, organizational jurisprudence includes both the establishment of workplace regulations (contract negotiation) and their interpretation and application (contract administration).

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Contract Administration

A contract consists mainly of things that management commits itself to do for employees, and it may contain rules limiting management’s freedom with respect to employees.

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For the most part, if management satisfies the terms of the contract, no further action is required until contract expiration.

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The aspect that requires attention comes into focus when an employee and the union claim that the employer has not followed the contract, and they institute action to remedy the situation.

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The Process of Continuous Negotiation

The entire concept of plant governance and contract administration can also be thought of as one in which union and management continue to negotiate during the life of the agreement.

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There are times when parties agree in principle in formal negotiations and leave the negotiation of the details of implementation to later.

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On other occasions, changing conditions might suggest some timely modifications to the existing agreement.

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With the period between negotiations being used to identify and promote meaningful dialogue around important work place topics of mutual interest.

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Grievance Procedures

The specifics of a grievance procedure are established by the parties when they negotiate their collective bargaining agreement.

Few procedures are identical.

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Grievance ProceduresStructure

A study of 400 union grievance procedures in all industries showed 91% of all agreements had between two (2) and four (4) steps, with the final step being Arbitration.

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Of the contracts specifying how the grievance was to be presented (first step), about half required that it be in writing.

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The amount of time allowed for bringing or appealing a grievance varied, as did the time allowed management to respond, but most contracts specified time limits.

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Union failure to comply with any of the time limits will usually result in dismissal of the grievance without any rights of appeal.

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Management’s failure to observe time limits usually is equated with grievance denial giving the union the right to appeal to the next higher step.

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In most states, arbitrators’ decisions are enforceable in court.

It is the sense of organizational jurisprudence that no decision by an arbitrator may add to, modify, or subtract from the contract.

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Otherwise the arbitrator has a wide range of discretion at his or her disposal.

Arbitrator’s decisions are intended to be final and binding but on rare occasions they are appealed (federal courts).

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What is a Grievance ?????

“a complaint by an employee, a group of employees, the union, or the employer, involving an alleged violation or interpretation of any provision of the agreement”.

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In virtually all contracts containing grievance procedures, individual employees are the ones who have the right to file grievances.

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When management is dissatisfied with an employee it exercises its’ authority and acts…..the appropriate employee reaction is the grievance.

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Arbitrators have found that only certain types of cases tend to occur frequently.

Those concerning:

Discipline, seniority rights, drug and alcohol problems, subcontracting, scheduling (overtime), job classification, and work methods.

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A Method of Final Resolution Arbitration

The vast majority of all grievances are settled in the early stages of the procedure.

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However, when the parties are unable to resolve their differences, they are likely to end up in arbitration.

This is made more likely when you consider that ninety-eight percent of all union-management grievance procedures contain arbitration clauses.

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Management is able to extract a “No-Strike” commitment from the union because it is willing to guarantee to the employee that all disputes arising in the workplace are resolvable through a grievance procedure that provides for final and binding arbitration.

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This process was further strengthened in 1957 when the Supreme Court decided that labor agreements were binding contracts and agreements to take disputes to arbitration could be enforced.

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In 1960 that same court made three additional decisions, the so-called Steelworks Trilogy cases, that established the circumstances under which the courts could compel arbitration, and established the limited basis upon which an arbitrator’s decision could be appealed.

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The NLRB also has a strong bias toward the use of arbitration in the resolution of disputes.

Even in cases where both the contract and the Act may have been violated the Board tends to defer to arbitration as the best method of resolution.

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Arbitrator Selection

By prior agreement most unions and management will use one of two services:

FMCS

American Arbitration Association

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Arbitrator Selection

List of arbitrators is requested (5-7) Each party strikes names Arbitrator selected / hearing date set Evidence and arguments presented at hearing The tone of hearing is set by arbitrator / parties Arbitrator charged with rendering an award Post hearing briefs required from each party Award is given in writing usually within 30 days The award is final and binding (limited appeal)

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Common Law in Organizational Jurisprudence

As case after case is processed within a company, the accumulated decisions can constitute a common law, establishing precedents for the detailed provision that cannot be spelled out in contract.

Two distinct attitudes have arisen toward such common law.

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Arbital Decision Making

Arbitrators are called upon to make two

kinds of judgements:

“Just Cause” for discipline and

discharge. (Assumes Due Process)

Contract Interpretation

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The Rules for Due Process

Employee should know the rules and the consequence of their violations.

Employers responses to rule violations should be consistent and predictable.

Employee discipline should be based on the facts.

Employees should be given an opportunity to question the facts and present evidence on their side of the story.

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The Rules for Due Process

Employees should be able to appeal the disciplinary decision.

Employees should be given progressive discipline.

Each employee should be considered as an individual.

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Standard for Interpreting Contract Language

The primary function of the arbitrator is to carry out the mutual intent of the parties as expressed in the agreement.

If the language is not clear the arbitrator may infer intent based on bargaining history, discussions during negotiations, and past practices.

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If specific meanings are not given in the contract, meanings may be derived from general and specialized legal dictionaries, and decisions of other arbitrators.

Where the contract contains both general and specific language, the specific tends to govern.

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Where there is room for interpretation and flexibility, arbitrators will take into account reasonableness and fairness when arriving at decisions.

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Duty of Fair Representation

In exchange for exclusive recognition, an accompanying duty is placed upon the unions to provide representation for all employees in the bargaining unit equally and fairly without regard to their membership status.

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Duty of Fair Representation

As long as unions do not violate the standards of “fair representation” they are not legally bound to bring every case to arbitration.

However, when the union ignores its duty to fairly represent a bargaining unit employee the aggrieved employee can seek redress through the courts.

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Grievance Procedures Non-Union Settings

In evaluating a grievance system, it is important not to equate absence of complaints with worker satisfaction.

The grievance process provides every employee access to senior management when they have serious complaints about their treatment and/or general conditions of employment.

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A grievance procedure in which employees have full confidence is difficult to create without a union.

Unless the process contains a third party arbitration provision the employee is ultimately faced with asking the company to adjudicate his or her complaint against “the company”.

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Non-union grievance procedures are established for at least two reasons:

• To inhibit the desire among workers for union representation.

• To improve employee performance and in due course improve

productivity and efficiency.

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Grievance Mediation

An alternative to the standard grievance-arbitration model is the introduction of a mediation step into the procedure.

Mediation is used as the last step prior to arbitration in which an interest based resolution is sought hoping to find a moreeffective resolution. If it fails arbitration is still an option.

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