About six months after the new GMFC-Local 384 contract was ratified; four grievances were sent to arbitration by the union. The company and the union agreed that all four grievances would be heard on separate dates by the same arbitrator. Your name was on the panel the FMCS sent to the parties, and they selected you to arbitrate the grievances. You agreed and have heard all four grievances over the past days. Now you have to prepare your awards.

Until the point at which the present grievance was filed the company has always used its own janitors for cleaning and maintenance. Because of operational requirements, most of this operational requirement, most of this work is performed on the third shift. About 16 janitors are required to maintain the Central City facilities. GMFC has always hard problems with absences amount its janitors, but since the last contract was signed, the absence rate has increased from an average of about 2.5 percent each week to 20 percent. Because of this increase, housekeeping lagged, and GMFC officials were starting to worry about fire code violations resulting from the superficial cleaning. Management considered discharging those who were chronically absent but found on investigation that absences seemed to rotate systematically among members of the crew, as if they were planned.

As a result of management's investigation, Carolyn Foster contacted Matt Duff, Local 384 president, and asked him to enforce the contract and get the janitors' absence rate down. She told Duff that the company considered the action the equivalent of a slowdown, and that strong action would be taken if absence rates were not reduced. Duff protested, saying there was not concerted activity behind the absences.

When the high rate and rotating pattern persisted, the company discharged the janitors and subcontracted their work to Dependa-Kleen, a full-time janitorial service. To the company's pleasure, Dependa-Kleen was able to take over the entire operation at a lower cost than the in-house operation at a lower cost than the in-house operation had incurred before the absence problem.

On behalf of the janitors, Duff filed a grievance arguing the discharges violated Section 4.02 of the contract. He also filed a ULP charge with the NLRB, claiming the company violated Section 8(a)(5) of the Taft-Hartley Act through its unilateral action in subcontracting the work without consulting or bargaining with the union.

The company argued it was justified in replacing the janitors because their systematic absences were a violation of the contract's no-strike or slowdown clause (Section 9.05). The company argued it was entitled to replace the participants consistent with the management rights clause in Section 4.02.

Assume the testimony at the hearing does not seriously challenge the evidence management has gathered on the increase in absences among the janitors. In this case, decide the following:

2. Would you find the grievance arbitrable given the ULP charge filed by the union?
4. Assuming you find the grievance arbitrable, frame an award, and justify it.

Answer rating: 100% (QA)

In determining the arbitrability of the grievance considering the unfair labor practice ULP charge filed by the union its essential to assess whether ... View the full answer