Masonry Magazine June 1977 Page. 7
MCAA legal corner
LABOR LAW POTPOURRI
By GEORGE L. PLUMB
MCAA Legal Counsel
ARBITRATION DUTY CONTINUES AFTER CONTRACT EXPIRES
The Supreme Court has recently ruled in a 7-2 decision that an employer must honor a collective bargaining agreement provision requiring arbitration of a severance pay grievance even though the dispute arose after contract termination. Nolde Bros., Inc. had contractually agreed with the Baker's Workers Local 358 that "all grievances" were subject to binding arbitration, and that if the plant closed the employees with three years of service were entitled to severance pay.
After reaching an impasse in negotiations, the union served the required seven day notice to terminate the contracts. Rather than endure the threatened strike, Nolde permanently closed the bakery four days after the contract terminated. Although employees were paid accrued wages and vacation pay under the terminated contract, Nolde refused severance pay required by the expired contract for plant closing. When the union filed a grievance, the company refused to arbitrate on the ground that "the duty to arbitrate, being strictly a creature of contract, must necessarily expire with a collective bargaining contract that brought it into existence."
The Supreme Court upheld Nolde's duty to bargain based on the following rationale: "The parties agreed to resolve all disputes by resort to the mandatory grievance arbitration machinery established by the collective bargaining agreement. The severance pay dispute would have been subject to resolution under those procedures had it arisen during the contract's term. However, even though the parties could have so provided there is nothing in the arbitration clause that expressly excludes from its operation a dispute which arises under the contract, but which is based on events that occur after its termination. The contract's silence, of course, does not establish the parties intent to resolve post termination grievances by arbitration, but in the absence of some contrary indication there are strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract. Any other holding would permit the employer to cut off all arbitration of severance pay claims by terminating an existing contract simultaneously with closing business operations."
The Nolde case is of significance because it points out that arbitration language in contracts can have significance and require management to arbitrate even after the termination of a collective bargaining agreement.
UNION STRIKE TO PROHIBIT PREFABRICATED PARTS HELD ILLEGAL
Construction unions suffered a major defeat when the Supreme Court upheld the NLRB "right to control" test in holding that the pipe-fitters violated section 8 (b) 4 (b) when it struck in protest of a subcontractor's use of prefabricated air conditioning units required by a general contractor. In a 6-3 decision the court held that an otherwise lawful preservation rule contained in a bargaining agreement was no defense to an unfair labor practice when the subcontractor's employees refused to handle the prefabricated products.
Under the Board's test a union strike over the assignment of disputed work over which the subcontractor has no right of control was deemed secondary and in violation of the Act. In the present case, the general contractor determined that the air conditioning units would be prefabricated and subcontracted only the installation.
According to the Supreme Court, the distinction between primary and secondary activity does not always turn on whether the union seeks to benefit the employees of the struck employer. The union's conduct is secondary if its "tactical object" is to influence another employer by seeking the prefabrication work on the job: the union's tactical objects necessarily include influencing the general contractor. In so doing, said the Court, the union's activity was secondary and in violation of the Act.
The Supreme Court in this case reversed the D.C. Court of Appeals which rejected the Labor Board's "right of control" test and held that the union's refusal to install the prefabricated components must be considered primary concerted activity permissible under the Act, if it could be please turn to page 24