3M succesfully terminated a past practice but contract language supported grievance

The Steelworkers union represents a unit of production employees at 3M's Cottage Grove, MN facility. The facility is fueled by natural gas and, on January 5th, 2014, 3M was notified by the utility company that because of the severe cold it was curtailing their use of gas. As a result, certain gas-dependent production lines were shut down and, because of the resulting loss of work, the affected employees were temporarily laid off. This gas curtailment continued until the afternoon of January 7th. This was the first time in at least ten years that the gas supply to the facility had been curtailed. Because of continued cold weather gas supply was again curtailed from January 25th through January 29th. Once again, certain employees were temporarily laid off as a result of loss of work caused by the curtailment. The Steelworkers filed grievances claiming in both instances that 3M had breached its cba by laying off employees out of seniority order.

In support of the grievances the Union claimed that the Company had breached an established past practice of providing employees with a 40 hour work week guarantee. It also relied on language in the cba providing that "The principle of Plant Seniority shall be applied in cases of layoff, recall, promotion, demotion, reduction and transfer of employees ...." 3M maintained that even if a past practice had existed it was effectively terminated in the last round of negotiations It also pointed to language in the cba providing that employees reporting for work without prior notice that work was not available would be provided with a minimum of four hours pay "except in cases beyond the control of the Company" as evidence that the layoff language did not apply in this situation.

Arbitrator Mario Bognanno rejected the Union's claim of breach of a binding past practice. He found that 3M had notified the Union during negotiations that it was repudiating certain practices, including "Granting employees work when work is not available." He noted:

It is firmly established in labor law, labor arbitration and industrial relations that an enforceable past practice may not be changed during the term of a CBA, without mutual assent. This is the rule, whether the term of employment is implied (i.e., an enforceable past practice) or expressly stated in CBA language. However, absent mutual assent, implied and expressed terms of employment may be changed during the negotiations of a successor agreement. In the present case, 3M repudiated the practice in question (i.e., it withdrew “mutuality”), during negotiations of the current CBA. At that point, for the practice to have continued, the Union, through negotiations, would had to have the terms of the practice explicitly incorporated into the CBA or to have persuaded the Company to objectively retract its expression of repudiation. The record evidence is that the Parties neither incorporated the referenced practice into the current CBA nor did 3M recant. (Un. Ex. 6) For these reasons, the undersigned rejects the Union’s claim that 3M violated an enforceable past practice when it laid off the Grievants in January 2014.

The Arbitrator then turned to an analysis of the impact of the express language of the cba, ultimately reaching different decisions on the two layoffs. With regard to the first, the Arbitrator concluded:

 Record evidence supports the conclusion that the actual curtailment of gas on January 5th and the resulting need to close down production lines was unprecedented, or nearly so, even though Minnesota’s freezing cold January weather is anything but unprecedented. Thus, even though the gas curtailment in question was a possibility, at least to Mr. Rogers, it is properly and sensibly characterized as a condition that 3M could not have reasonably expected. ...

[A]s the Union accurately pointed out, the CBA does not expressly allow management to disregard Article 8, §8.01 and §8.07’s seniority rules. However, as the Company accurately observed, arbitrators often hold that layoffs may be exempted from the seniority rule when unusual, unexpected, unplanned, even emergency, circumstances dictate same. Mr. Wakefield’s decision to have immediately shut down the FATT production lines at 10:00 p.m. on Sunday, January 5th was a necessity.

...

The first of 3M’s two (2) January 2014 layoff events was an unforeseen emergency that required 3M to immediately shutdown the FATT production lines unfettered by the seniority rule and its time-consuming procedure. Under these circumstances, to penalize 3M would be unjust and wholly inequitable. Thus, under said circumstances, the undersigned concludes, to penalize 3M would be to impose a remedy that the Parties never intended under Article 8. For these reasons, Grievance #2014-14 is denied.

With regard to the second shutdown, however, Arbitrator Bognanno concluded that the Company was now on notice that a shutdown was a possibility, and the Union's grievance made it clear that the Union would be seeking to enforce the seniority provisions of the cba. He sustained the grievances regarding the second layoff, noting:

... it cannot be concluded that on January 26th 3M was confronted by an unforeseen emergency situation. Such an event either was or should have been reasonably anticipated. The record evidence does not credibly explain why 3M did not, as a contingency matter, execute Article 8’s bidding/bumping process among employees working in production operations that most likely would be affected by a gas curtailment. At a minimum, it should have done so during the week of January 19th.In effect, in a contract-compliant way, 3M should have pre-determined who to layoff in the event MERC again cut off its supply of gas. Under the circumstances that prevailed on January 26th, Article 8’s seniority rights would have no meaning whatsoever unless, facing layoff, the affected senior employees were given the opportunity to bid jobs held by junior employees, jobs that they were qualified to work. 

Arbitrator Bognanno's award can be found here.

Seniority, past practice, vacation selection and a police department reorganization

Arbitrator Harry MacLean has issued an award rejecting a grievance filed by the Denver Police Protective Association claiming that the City of Denver violated officers' seniority rights when it changed the unit in which officers selected vacations.

Prior to the change, the Denver Police Department had been divided into six districts. Officers selected their shift and regular days off on the basis of district wide seniority every 28 days. Once a year officers selected their vacation for the coming year, also on a district wide basis. Under the direction of a new Chief, the police department reorganized the districts into twelve teams. Each team had a regular shift and set days off for a twelve month period. The officers in each district bid by seniority onto  a team, and vacations were selected based on seniority within the team rather than within the district. The Union grieved the change, claiming that it violated the terms of its bargaining agreement. The contract provided:

Throughout the department, voting in each Bureau/District shall be by seniority in rank. ... Division chiefs may permit voting within individual units subject to the approval of the Deputy Chief of the affected area of Operations or Administration. The Chief of Police may establish exceptions to this rule as he deems necessary for the efficient operations of the department.

The Union maintained that the past practice of the parties had limited the definition of "individual units" to specialized units such as SWAT, and argued that the definition was limited to units as they existed when the most recent contract was adopted. The City, however, pointed to language in its Police Department manual defining a unit as "any number of officers ... regularly grouped together under one head to accomplish a police purpose."

Initially Arbitrator MacLean concluded that the Union had not established that the practice it claimed was "unequivocal", and that the Union had not established that the City had agreed to the limited definition suggested by the Union. The Arbitrator also noted that the City's Charter "is quite clear" in retaining the right to manage certain aspects of the Department. The Charter prohibits bargaining on police department staffing, the number of shifts, and the assignment of work to officers.

Arbitrator MacLean noted:

     [T] City has a right as it sees fit to organize the police department, to staff the police department, and to assign work to police officers. Any provision in the CBA which seeks to limit or restrict these rights is invalid as contrary to Section 9.8.3(C)(ii) of the Charter.

 The Union argued that it was not challenging the right of the City to reorganize the districts into teams, but only the manner in which vacations were selected under the new structure. Arbitrator MacLean determined, however, that the team concept would be "decimated" if officers were allowed to select vacations on a District wide basis. He concluded:

The Chief was clearly acting within the authority reserved to him in the Charter to reorganize the department. The new team models are sound and unquestionably beneficial. The language of the CBA provisions cannot reasonably be read in such a way that it in fact nullifies this otherwise legitimate exercise of managerial authority.

CBS Denver reports on the award DPD Reorganization Upheld, and links to Arbitrator MacLean's award here.

The issue of "nondelegable" rights is discussed in a previous post Arbitration, Management Rights and Public Policy.

Award in Verizon Layoff Arbitration

Arbitrator Jack Tillem has issued an award in a dispute concerning the layoff provisions of the Verizon/CWA labor agreement. The dispute arose when Verizon notified the Union that it would be laying off certain employees in New York City.  The Union claimed that the contract required that layoffs take place in inverse seniority order from among all employees in the affected title in the 13 state bargaining unit. Verizon claimed that the relevant language limited the layoffs to employees in the affected work group.

Agreeing with Verizon, Arbitrator Tillem found the language of the agreement was not ambiguous and, by its terms, supported the Company’s actions.  He also noted the practical difficulties the Union’s interpretation would create, and concluded that the failure of the parties to address these difficulties in contract language tended to suggest that the union’s interpretation was not the intended one. A copy of Arbitrator Tillem’s award can be found here.