Sunday, July 28, 2013

Work assignment grievance survives NLRB unit clarification

Certco, Inc. initially operated a single warehouse on Verona Rd. in Madison, WI. The employees in that facility were represented by Teamsters Local 695. Certco subsequently opened three new distribution facilities and staffed them on a non-union basis. On two occasions, the NLRB  rejected claims that the new facilities were accretions to the bargaining unit.

Local 695 also filed a grievance, claiming that the work performed at the new facilities was bargaining unit work, and that Certco had violated the cba, which provided that Certco "shall not direct or require its employees or persons other than the employees in the bargaining unit ... to perform work which is recognized as work of the employees in said units."

An arbitrator sustained the grievance and ordered Certco to return to bargaining unit employees all work which had been transferred out of the facility. Certco sought to set aside the award as contrary to the NLRB's unit clarification decisions. The district court, and now the seventh circuit, rejected that position. The court observed that what the NLRB decided was that "work at the [non-union] facility did not accrete to Local 695 as a matter of federal law ...." The court concluded that the NLRB's decision did not address the contract interpretation issues raised by the grievance, and therefore did not impact the arbitrability of the contract interpretation grievance.

Agreeing with the District Court that the arbitrator's award should be confirmed, the court noted:
Certco treats the arbitrator’s decision as requiring it to recognize the Union as the representative of workers at Femrite and Daniels, but what the arbitrator actually ordered is that the work formerly done at Verona Road be returned there (where the Union already is the exclusive bargaining  representative), or be performed by bargaining-unit members, unless the Union agrees to modify  Article 12(1). Certco  may find compliance expensive, but the costs of keeping one’s promise do not excuse performance.

The Seventh Circuit's decision can be found here.

1 comment:

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