Last updated November 19, 2009
Peggy Sears, city of Troy HR Director, will be leading MPELRA for the next year as the newly elected president. Peggy did a great job of putting together our 40th annual training conference. Joe Valentine provided valuable leadership for the last year as the previous president. Thank you Joe and congratulations Peggy!
KEY COMMANDMENTS FOR ACT 312
Noted arbitrator George Roumell appeared at the 40th annual MPELRA Annual Training Conference at Shanty Creek in September. Speaking on the history of Act 312, Arbitrator Roumell listed these "Key Commandments" for an effective Act 312.
1. Take care in selecting your panel delegate. A panel delegate can be effective in dealing with the chairman and guiding the hearing.
2. Keep exhibits within reason. Giving contracts of all the comparables just adds bulk. Unless there is a dispute as to the facts concerning the other comparables, there is no need to introduce the other contracts.
3. Attempt to expedite the proceedings. Long drawn out proceedings test human endurance and do not necessarily accomplish the purpose of Act 312.
4. Keep the issues to a minimum. Minor issues should be resolved by the parties.
5. Try hearing on consecutive days to keep the flow of the proceedings.
6. Do not be afraid to settle during arbitration.
7. Consider techniques supplementing Act 312 that may aid in resolving the dispute.
8. Try to keep the procedure cordial.
9. If permitted by the chairman, attempt to get the right to modify last best offers.
10.Think about giving a closing statement rather than the delay of post-hearing briefs.
RETIREE HEALTH BENEFITS
The Sixth Circuit U.S. Court of Appeals found that an employer cannot require its retirees to share in the cost of their retiree health benefits if the benefits are vested (Reese v. CNH America LLC, 6th Cir., No. 08-1234, 7/27/09).
CNH (formerly Case Corp.) had a collective bargaining agreement (CBA) with the UAW that stated retirees and their spouses would receive health benefits paid fully by the employer. A new agreement was reached requiring retirees to contribute towards the cost of the health care if they retired on or after December 1, 2004. CNH sought to impose this on employees who retired prior to December 1, 2004. A group of pre-December 1, 2004 retirees filed a lawsuit claiming they were entitled to lifetime health benefits and should not have to share in the cost. The district court agreed with the retirees.
On appeal, the 6th Circuit agreed with the lower court that the retirees are to be provided lifetime, cost-free health benefits. Applying the ordinary principles of contract construction, the Court found that the language of the CBA was sufficient to determine that the health benefits were vested. However, the appeals court remanded back to the lower court, to determine the level of benefits to be provided; finding that there was no requirement to provide the same level of benefits that had been in effect for previous contracts.
In other words, the health care benefits must last a lifetime but the employer may be able to implement reasonable alterations to the benefit plan.
HOLY LEDBETTER!!
An argument frequently made in the grievance arbitration setting is the “continuing violation” theory. Under this theory, a grievance may be considered timely filed even if it was not filed until after the time limits contained in the grievance procedure have expired. For example, an employee is placed in the wrong position on the overtime list but doesn’t file a grievance until by-passed for the fifth time, three months afterwards. Labor Relations could argue “Sorry, your grievance had to be filed within xx days of the occurrence. Your grievance is untimely and therefore denied.” The Union takes the case to arbitration and the arbitrator finds the grievance timely stating that each time the employee is by-passed for overtime, a new violation occurs because there is a “continuing violation.”
Why am I talking about this?
President Obama recently signed into law The Lilly Ledbetter Fair Pay Act of 2009. The Fair Pay Act dismantles United States Supreme Court’s decision in Ledbetter v Goodyear Tire & Rubber Co, Inc. 550 U.S. 618 (2007). The Court held that a Title VII disparate pay claim was untimely if the allegation of discrimination occurred outside the applicable statute of limitations time frames. Under the new Act, a new date for statute of limitations purposes begins each time an employee receives a paycheck. Once the discriminatory practice is established, the employee suffers the effects of the unlawful practice each time he/she receives a payment; thus creating a “continuous violation” of the law.
So what does this mean?
Recordkeeping…..Recordkeeping….Recordkeeping
Potentially under the Ledbetter Act, an employee or group of employees can file a claim of disparate pay long after the statutory time limits have expired….even years or decades afterwards. So, recordkeeping is essential. Not only pay records but records that clearly set forth that the decisions regarding the pay levels of employees were made in a non-discriminatory manner. Memories fade; people move away or worse, pass away. Under Ledbetter, Employers need to be able to establish those pay practices were non-discriminatory and it may be years after the fact.
STATE COURT OF APPEALS UPHOLDS MERC ORDER
In this unpublished decision dated December 16, 2008, the Employer (Wayne County Community College) withdrew the traditional Blue Cross Blue Shield insurance plan from the medical insurance options available to employees. The Union filed an unfair labor charge alleging that the College had repudiated the collective bargaining agreement (CBA). MERC agreed finding that the unilateral withdrawal of the insurance plan was an unfair labor practice. The College appealed, claiming that the CBA authorized it to withdraw the plan so long as it offered another comparable plan and that the dispute should have been resolved pursuant to the CBA’s grievance procedure, not through MERC.
The Court agreed with MERC’s analysis. If there is no bona fide dispute over the interpretation of the language in the CBA, a breach of contract can constitute an unfair labor practice, so the grievance procedure is not the only avenue for resolution. Having found the CBA language to be unambiguous, the Court agreed that the withdrawal of the plan was a breach that had significant impact on the bargaining unit. It was an option guaranteed by the CBA and at least one-third of the bargaining unit members selected the option.
The moral of the story is, be wary of unilaterally eliminating any insurance plan that is specifically named in your CBA; absent language that clearly states it may be eliminated.
Did you know.....MERC is very consistent in dismissing an unfair labor practice charge if the charge is filed more than 6 months after the alleged incident? It's important to keep good documentation of specific dates and times when an Employer takes an action so in the event of a ULP, you can establish applicable time frames.