Question: Thank you.

Question:
I need help with this, please. Thank you.
Characters
For XYZ Union
For RST Company
Chief Negotiator/team leader = Bill Sharp
Grievance Chairperson
Shop Steward
Shop Steward #2 = Ravi
Rank & File
Strike Replacements: Marley, Juan, Rich, Frank
Grieving Employee = Barbara Stone
Vice President of Finance (VPF)
HR Director
Labor Relations Specialist = Paula
The president of the XYZ union (Union) convened a special meeting of the members to discuss the new contract with its private-sector employer, the RST company (Company). Bill Sharp, the union’s chief negotiator, stepped to the front of the room.
“Let me begin by saying that our negotiating team has been well prepared for this bargaining. We’ve known that it would not be an easy task and have anticipated the major issues. We’ve been meeting twice a week at the table for the last two months and have secured several of the demands that you wanted, such as standard 2-shift, advanced scheduling.
Delores, who plans to retire soon, interrupted: “What did they do for the retirees? The retirees didn’t get a single increase in their pension benefits over the last three years. They should get a at least a 5% bump to help them keep up with inflation.”
Bill replied: “Just like 3 years ago, the company has again refused to negotiate about that; so, no, we’re still working on it. When we have a complete contract that is ready for ratification, we’ll go over all of the provisions with you. For tonight, we need to talk to you about an impasse.”
As the murmurs in the room subsided, Bill shifted his body weight to his other leg and leaned toward the group. “At this point in the process, we’re negotiating the critical elements—keeping the work at our site if they open a new location and health care benefits. The work-to-rule days we had and the informational picketing we already tried were useful, but they are still digging in their heels on both of these important issues. We’re not likely to have a new contract agreed upon when our existing contract expires at the end of this month. We need to start building for a strike. That means work all the overtime you can now and start saving. We’ll have to get a campaign going in the shop, but also talk about a press and customer strategy. But at the end of the day, I think we’ll need to strike the company if we’re going to get them to give us a fair contract. You know striking isn’t the way most contracts are settled, but we need to prepare for the possibility. Tonight, we need to hear your questions and comments. Remember that anything said in this meeting should stay here; we don’t want to tip them off about our plans plus the information could change during the rest of the process.”
After another 3 weeks of negotiation, all of the issues had been settled except for the following items. Several proposals crossed the bargaining table from both sides. The most recent ones were:
Company’s proposal = The Union recognizes that management has full and sole rights to direct the workforce, including the right to hire, transfer, discipline, suspend or discharge employees. It includes the right to determine working hours, to assign overtime, to modify jobs, and to transfer work to any other company location or to subcontract work.
Health care premiums
Union’s proposal = The company will pay 100% of the health care premiums in all years of the contract.
The president of the union, who is planning to run for re-election next year, scheduled a meeting with the union’s negotiation team leader, Bill.
President: So what are we going to do? What are the options?
Bill: They won’t budge on these. We think they’re planning to open a new facility in a RTW state. If we don’t have protection of our jobs, they will shift the work there and we’ll eventually disappear. We have to raise the pressure.
President: Can we file an unfair labor practice claim with the Board about how they are refusing to negotiate?
At the same time, the Vice President of Finance for the company, who has a bonus clause in his performance plan which is based on cost reduction, meets with Paula, the Labor Relations Specialist who is leading the company’s negotiations.
VPF: So where are we now?
Paula: Down to the final wire. They might not have reached their resistance point and still be willing to discuss the health care cost, but they are adamant about any language that suggests we could assign their work elsewhere. I’m pretty sure they are preparing for a strike.
VPF: Can they do that? I thought it was illegal.
VPF: Well, what is our Best Alternative to a Negotiated Agreement? BATNA, isn’t that the right word? What else can we do?
Paula: Yes, it is. Legally, in our circumstances, we likely can unilaterally implement our last proposal. As soon as we do, however, the picket line will go up.
VPF: Is that horrible?
Paula: The operation managers tell me we’ll have trouble filling our orders. Even strike replacements, which is a major effort to put in place, won’t be a total solution since they don’t know the work. Some of the jobs have a long learning curve. We’ll need to bolster security measures to minimize the chances of physical damage to property and people. Then, there is the media. When we’re trying to expand our operations and convince the county to give us tax breaks, bad press won’t help. And, there may be damage to our long-term relationship that could result in costly grievances throughout the life of the contract.
VPF: Well then? We have to get a handle on these constant overtime costs. They are blowing the budget every quarter. Shifting the work to a lower-cost option is essential.
Paula: We might invite a mediator from the FMCS to see if there is any wiggle room.
VPF: We had one decide the last contract dispute with one of our vendors. I wasn’t thrilled with the answer, and we’re stuck with it. How can we make sure we don’t get stuck with something we don’t want in this case?
After four weeks of mediation without any significant change, the union members authorized their leadership to call a strike. In a confidential ballot vote, stipulated by the union’s by-laws, the decision was 95% for a strike and 5% against. The strike began on July 20. It was a peak production period for the company, and the competition had become keen since global corporations had entered the U.S. market. Believing any loss of market share would hurt the company’s long-term financial status, the company had done some preparation for this possibility. In addition to stockpiling more inventory, it had prepared to employ strike replacements; and, on August 6, it hired 100 of them to cross the picket line to do the work of the employees in the bargaining unit. “Scab!” the picketing employees yelled. Heckling and jeers ensued each morning as the new employees went to work. Fists occasionally slugged the air, but no physical violence occurred. Some replacements found the environment so hostile that they quit. Local news reports began covering the dispute. Community leaders became concerned that any loss of employment would hurt the tax base and stress the available social services. The strike replacement workers were not as efficient yet at the tasks involved, creating quality problems.
Eventually, the two sides found enough common ground to come to agreement. The union negotiating team submitted the new contract to the membership for ratification. The Company CEO issued a press release that said:
We are pleased to announce an agreement with the Union bargaining committee and hope that all Union members will give this contract a full and fair consideration. These were very tough negotiations. Both sides worked very hard and compromised. The result is a very positive offer for the employees that also protects the long-term competitive position of the Company.
The union members knew it was not exactly what they had demanded, but the strike fund was depleting and people were tired after manning the picket line 24/7. The members voted by 75% to 25% to adopt the new agreement, which met the criteria in the union’s by-laws. Thus, the new contract was ratified on September 1, 2017.
During the final stages of the strike the parties negotiated the conditions under which the strikers might return to work. They agreed to the following language as part of a Strike Settlement Agreement, which was signed the same day the new contract was ratified:
The strike against the Company by its employees who are members of the Union is terminated as of the date of this Agreement, September 1, 2017. Striking employees shall be returned to work, to openings in the classifications occupied by an employee on May 31, 2017, in accordance with his/her respective seniority.
In addition to the above agreed upon language, the Company proposed that the Strike Settlement Agreement contain the following section (Paragraph 2), to which the union objected:
2. Jobs filled by employees hired by the Company on or after August 6, 2017 as strike replacements (new hires) for striking employees shall not be considered vacancies to which returning strikers shall be returned unless and until such jobs are vacated by the strike replacements. Such new hires shall not be bumped or displaced by the return of strikers. Such newly hired employees shall become members of the Union as stated in the collective bargaining agreement and their respective seniority shall be measured from their individual hire date.
Because the parties did not agree to the Company’s proposal concerning Paragraph 2, the parties determined that while Paragraph 2 would physically remain in the printed Agreement, the following marginal notation would be added reflecting the parties’ failure to agree to this particular provision. This marginal note read:
Paragraph 2 represents the position of the Company and is not agreed to by the Union or waived by the Company.
During the plan to resume normal operations, the company determined that it had too many workers in the first level positions. It terminated 10 of the strike replacements since they were no longer needed.
On September 12, Marley, Juan, and Rich, three of the ten terminated strike replacements, made an appointment with the union’s Grievance Chairperson (GC) to file a complaint.
GC: You need to speak with the Shop Steward first.
Marley: We tried. He wouldn’t listen to us—kept calling us “scabby.”
GC: What is the problem then?
Marley: I was fired yesterday. HR told me last week that this would be a permanent job. I’m entitled to some protection.
GC, looking at Juan: What about you?
Juan: Me, too. I’ve been fired.
GC: When were you terminated?
Juan: Two days ago.
GC: Why were you fired?
Juan: One of the strikers was recalled, so I was pushed out.
GC: Wasn’t that the arrangement when you hired in?
Juan: Then they said they would see if they could keep me.
GC, turning to Rich: What about you?
Rich: I was fired on August 31. They told me I’d have the job after the strike was over. I asked that in the interview because I had another part-time job offer closer to home. I was going to take that instead if this job didn’t last very long.
GC: Ok, I understand. I need to pull together a couple things. I’ll call you tomorrow to let you know what, if anything, we can assist with about getting your jobs back.
The next morning, the Grievance Chairperson received a visit from another strike replacement
worker.
GC: What seems to be the problem?
Frank: I heard that you might be able to get my job back.
GC: When were you fired?
Frank: August 29 was my last day.
Frank: I’m not sure. They indicated that the work ran out, but I heard one of the strikers took over the job again.
GC: What did they tell you when they hired you?
Frank: Nothing really. They just said they needed someone right away.
The Grievance Chairperson collected all his notes and pulled the new contractual documents out of his file drawer. He flipped the pages and ran his finger down the paragraphs. He tagged the union shop arrangement:
Article II
Section 1 Any employee who is a member of the Union on the effective date of this Agreement shall, as a condition of employment, maintain his/her membership in the Union to the extent of tendering uniform initiation fees (if any) and periodic dues.
Section 2 Any person hired as a new employee and any employee who is hereafter transferred into the bargaining unit on or after the effective date of this Agreement shall, as a condition of employment, become a member of the Union (to the extent of tendering uniform initiation fees (if any) and periodic dues) on and after the thirty-first day following the date of employment or transfer, and shall maintain such membership in the Union.
He also earmarked:
Article 13 – Section 3
Management has the sole right to discipline employees according to the progressive process described in Section 5 and to discharge employees for just cause.
Article 13 – Section 4
Causes for immediate discharge are: possession or use of drugs or alcohol on company property, theft or damage of company property, workplace violence, and any other threat to the safety of the facilities and workforce.
He also checked with the union’s Secretary/Treasurer to learn the status of the workers’ dues. He was told the following:
Marley
Paid on September 3
Juan
Not paid
Rich
Paid August 20
Frank
It was a busy week for the Grievance Chairperson. Another Shop Steward, Ravi, made an appointment to discuss a grievance he couldn’t resolve with the employee’s supervisor, Paul Hawkman.
GC: Hi, Ravi. I saw the grievance form for Barbara Stone. Isn’t she the woman who held the picket sign in the County Courier’s front page coverage of the strike?
GC: Well, what about this? In the first step, what did they tell you?
Ravi: About 2 years. Dick wasn’t one to record an issue unless it was something really serious. So, there isn’t anything during his time. Hawkman has marked her for being late twice in the last month, but there isn’t any formal warning.