YOU BE THE ARBITRATOR Refusing to Arbitrate ARTICLE IV ARTICLE IV, Section 3 above. The Company and GRIEVANCE PROCEDURE the Union shall attempt by mutual agreement to appoint an arbitrator, then either party may request a panel of arbitrators to be submitted 3. If the grievance is not resolved at the confer- by the Federal Mediation and Conciliation ence as provided for In STEP TWO above, then Service, State Conciliation Service or American either party may request, in writing, within fifteen Arbitration Association, and an arbitrator shall be (15) days of the conference that the matter pro- selected from such panel by the process of each ceed in accordance with ARTICLE V. Failure of party alternately eliminating one of the suggested either party to give such written notice shall names until there remains only one name on the waive the rights to proceed in accordance with panel. . . . ARTICLE V. Facts ARTICLE V ARBITRATION The Union and Employer are parties to a written collective- bargaining agreement (the CBA) covering a 30-member unit of production employees at a plant in Yuma, Arizona. 1. Disputes concerning contract interpretation. The CBA has a no-strike, no-lockout provision and the disposition of assets, the right of sale, the right requires that all disputes and grievances be resolved to control the number of hours that the plant be under the grievance procedure in the agreement. The open or closed down either for lack of business or CBA includes a two-step formal grievance procedure for economic reasons, or matters which involve prior to either arbitration or judicial enforcement. The management decision or business judgment shall CBA requires that formal grievances at step one and step not be subject to arbitration. Procedural questions two to be in writing, describe the facts, state the remedy of compliance with the contract shall be subject sought, and identify the sections of the CBA claimed to to judicial determination and not arbitration. have been violated. Either party may seek judicial relief with regard The Union filed four grievances, none of which were to any of the foregoing. resolved at Step two. The issues grieved were (1) a per- Any other disputes concerning working con- formance memo issued to an employee for having a neg- ditions, safety or other matters not excluded ative and uncooperative attitude and suspending her for herein, shall be subject to arbitration; provided a three days, (2) an employee being improperly hired and written notice has been given as provided in paid from the piece rate pool generated by senior unitemployees, (3) an operator improperly given a share of the grievances. The Union further argues that the group piecework pay for work done by other unit Employer's conduct is a "wholesale" repudiation of the employees. (4) a written warning issued to the entire crew arbitration procedure. for asserted violations of company policy and a work rule. Employer Position The Union sent separate letters to the State Mediation It is well settled that arbitration is a matter of contract, and and Conciliation Service requesting a panel of arbitrators a party cannot be required to submit to arbitration any dis- for each grievance. Each of the letters stated, inter alia, pute that the party has not agreed to submit. The CBA in "This matter is a labor dispute involving interpretation and this case contains a very narrow arbitration clause, application of a collective-bargaining agreement." expressly excluding. inter alia, "[djisputes concerning con- The Employer refused to arbitrate these grievances, tract interpretation . . . management decision or business contending that they were not subject to arbitration under judgment." The Employer contended that the four griev- the CBA. ances concerned contract interpretation, management deci- sions, or business judgment and were therefore excluded Issue from the arbitration provision. The Union itself initially Was the Employer's refusal to arbitrate the grievances an took the position that the four grievances involved contract unfair labor practice? interpretation; the Union's letters requesting the arbitration of those grievances stated that the "matter is a labor dispute Union Position involving interpretation and application of a collective-bar- gaining agreement." Given the nature of the grievances and An employer's refusal to arbitrate grievances, pursuant to a the Union's own characterization of the four grievances as collective-bargaining agreement, violates Section 8(a)(5) of involving contract interpretation, the Employer was under the act if the employer's conduct amounts to a unilateral no obligation to arbitrate the four grievances. modification or wholesale repudiation of the collective- bargaining agreement. The Union charged that the QUESTIONS Employer's refusal to arbitrate grievances in this case was both an unlawful contract modification and an unlawful 1. As arbitrator, what would be your award and opinion unilateral change. In refusing to arbitrate the grievances, the in this arbitration? Employer relied on the narrow language of the arbitration 2. Identify the key, relevant section(s), phrases, or clause, which excludes from arbitration disputes concern- words of the collective bargaining agreement (CBA), ing contract interpretation or matters which involve man- and explain why they were critical in making your agement decision or business judgment. The Union asserts decision. that the grievances at issue here were not excluded by the 3. What actions might the employer and/or the union language of the contact, and that even assuming that there have taken to avoid this conflict? was some arguable basis for the Employer's position. Source: ACS, LLC and United Food and Commercial Workers the Employer was required to arbitrate the arbitrability of International Union, Local 1096, 345 NLRE No. 87 (2005)