Grievances and the (Mis)interpretation of Essay

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The union, as the filer and continued impetus behind the grievance, has the burden of proving that the company in some way violated its labor contract in so doing. The level of proof needed is fairly basic; the contract can be carefully read by the arbitrator, and any actions that were illegal according to the terms of the contract could be identified. The burden of proof must lie with the union just as an alleged criminal is supposedly "presumed innocent until proven guilty" -- it is a basic logical necessity. The company can no more prove that it has not violated the contract and more than a suspect can prove he did not rob a bank (for exmple); it is impossible to prove a negative. If the contract had been violated, there would be clear evidence of this for the union to point to.

Instead, the union's accusation is full of inferred motives and presumed intentions of the company. It is even possible that these accusations are true, and that the company was not acting in good faith during the reevaluation of the janitorial jobs. This is not an issue of good faith, hwoever, as it was not an instance of collective bargaining. The union was attempting, after the evaluation, to enforce a rage increase as stipulated in the already-bargained contract. The company enacted their right, stipulated in the same contract, to contract the work out rather than pay a higher wage. This might be disadvantageous to the company in the long run, but it does not violate the contract. As a general guideline, the union could insist in fewer contracts that any proposals by the company to contract out work for jobs formerly held by union employees, or that replace jobs held by union employees (in the case of reevaluations), must be bargained for by the union first (i.e., the union has a chance to bargain for any jobs that might be lost to subcontractors).

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A relatively simple clause in the labor agreement could achieve this, to the benefit of both parties.

The company's actions were expressly permitted by the labor contract, Article 4.1.2: "rights of management' includes:...the placing of production, service maintenance, or distribution work with outside contractors or subcontractors." The same paragraph gives them the right to terminate the entire business. But even were these rights not expressly granted by the contract, the company would still not be in violation of the agreement, especially not the recognition clause which clearly -- and necessarily -- states that it serves only the employees covered by the agreement in regards to collective bargaining. No bargaining is required for the hiring of outside contracts, nor for the termination of union employees. The union has no right to represent the subcontracted janitors, and therefore no practical way to eliminate the wage difference and provide incentive for union workers, so they have resorted to a grievance.

My ruling would quite clearly be for the company in this instance. The union has not even come close to meeting their burden of proving that the company in some way violated the contract, though the actions of the company do not always appear to have been made forthrightly or with the best of intentions, they have also made clear efforts to stay within legal and contractual bounds (as in providing back pay reflecting the raise for janitors that had -- according to the company -- agreed to retain a lower pay rate) and to mitigate damages to the employees themselves. Though their actions promise them greater difficulty with the union later on, their actions were not illegal. Grievances like these could be avoided with more careful interpretation of and attention to contract….....

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