I. INTRODUCTION

The UAW

First, it holds its officers to high ethical standards, higher standards than other unions, or corporations, require of their own.

In 1992 in San Diego, the long-serving chairman of the Public Review Board ("PRB") addressed the convention, the UAW's highest body, reporting recent PRB activities. He observed:

[T]he UAW is the only major labor union in America to entrust the ultimate guardianship of the democratic rights of its members and subordinate bodies to a group of independent outsiders. That is an enormous grant of power which no other organization outside the UAW, to any significant degree, whether in labor or out of labor, has ever tried to do.

...

The ultimate guarantor of democracy in any institution is not the people who run it, but the legal structures which form the foundations upon which the institution is constructed. I think you can be extremely proud of the fact that your institutions are the best in the United States, or perhaps in the world.

Proceedings, 30th constitutional convention (1992), pp 234-37 (report of PRB chairman).

As to corporations, the PRB compared them in one of its early decisions. In 1957 Russell White resigned as president of UAW Local 652 in order to accept an appointment as Michigan's labor commissioner. But then the Michigan Senate rejected the appointment. Brother White said he had the right to go back to his office in the local; the local had never formally accepted his resignation. The International Executive Board ("IEB") said that in fairness and justice resuming the presidency should be allowed. Disagreeing, the PRB pointed to White's public statements to the effect that he had broken ties to the union:

[T]o permit White to take a public posture of severance of Union connections while at the same time privately purporting to continue to hold the office of Local president is inconsistent with the high ethical standards of the Union. We are, of course, cognizant of the pattern that has come to exist in our society of business executives resigning to go into governmental service, and, in so doing, theoretically severing their connections with their former employer, only to return after such service to their old positions.... But we cannot condone a practice simply because it has become conventional through repetition.

Egres, 1 PRB 50, 55, 62 (1959);

see also EP complaint of Trapane, 3 PRB 15, 26 (1980) (PRB imposes no higher standard than the UAW would impose on itself),

Drake v Local 659, 4 PRB 84, 88 (1983) (PRB imposes no higher standard than the UAW would impose on itself),

Alli v UAW, 4 PRB 222, 227-28, 232 (1984) (in charging expenses to the union members should be guided by "informed judgment applying [the constitutional requirements] with an eye to what the UAW is all about"),

Page v Local 961, 6 PRB 288, 294 (1991) (PRB not so naive as to expect that a union election campaign will be conducted on a higher level than a US presidential one),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05), pp 19-23 (employee-members must be given notice of adverse personnel actions, and a chance to try to convince the decisionmaker to change the decision and to appeal if necessary),

Lartigue v UAW, PRB Case 1634 (1/26/10), p 17 ("Most of us have experienced the difficulty and frustration of making complex decisions with the various organizations to which we belong. As citizens, we might even occasionally indulge in a belief that we could solve our nation's problems if only we could exercise unfettered control over the decision making process. History informs us, however, that dictatorships seldom operate in the best interest of the governed, whatever the intentions of the dictators.").

Second, the UAW is united in militancy and solidarity. The constitution points out the authoritarian structure of work and its contradiction to the democratic heritage members have as citizens. The UAW is an industrial union. It bands employees together so their collective strength can get a modicum of bargaining parity and counter the company's might. On a larger scale, the collective strength of all members by whomever employed enhances the power even more.

Preamble (structure of work and authoritarian workplace);

Hess v Local 287, 1 PRB 375, 379 (1966) ("The laws which a union adopts are, like any other laws, binding upon those who comprise its society.... [E]ffective collective efforts depend for their success upon the degree of adherence by all who are involved.... Labor then must have a means of enforcing its laws upon those who would disobey them for, if it cannot, then the sources of its strength are undermined."),

Kizelowicz, 1 PRB 705, 707 (1971) (historically UAW as industrial union has presented one contract for production and skilled together),

Liddell v UAW, 2 PRB 92, 102, 113 (1974) (UAW evolved as an industrial union in auto, pursuant to egalitarian principles that all employees would be part of a single bargaining unit in a single organization),

Poszich v UAW, 2 PRB 125, 135, 146 (1974) (UAW evolved as an industrial union in auto, pursuant to egalitarian principles that all employees would be part of a single bargaining unit in a single organization),

Unit 1, Local 412, 2 PRB 251, 259 (1975) (quoting the IEB asserting the local union is "the unit of structure which is the foundation of mutual assistance in collective bargaining matters and in other activities in which the union engages"),

Schriber v Local 699, 5 PRB 115, 118 (1987) ("Given the historic adversarial nature of that labor-management relationship [the independence of trade unions in North America], support by management for a candidate for Union office is usually equated to the sting of a viper."),

Hammersmith v GM Department, 6 PRB 439, 443 (1992) (collective strength of all UAW members by whomever employed enhances bargaining power),

Morris v Local 1853, 9 PRB 213, 220 (1996), quoting from Alspach v Local 977, 1 PRB 300 305 (1963) ("trust relationship ... is created when an employee surrenders to a labor union his individual right in dealing with his employer concerning the terms and conditions of his employment.... [T]he very purpose[] for which a labor union exists [is] the protection of the workers who comprise it."),

Quesada v Local 2244, 11 PRB 386, 391 (2002) (maximization of voter participation, so as to more accurately reflect the preferences of the electorate, is a union responsibility);

compare Franks v UAW, PRB Case 1520 (12/20/05) p 13 ("[A]ssumptions that might be valid about an employee's knowledge of her dues obligation in the context of the automobile industry are not necessarily appropriate in the context of a Casino."),

Pearson v Local 140 PRB Case 1534 (2/15/06), pp 7-8 ("[Barring retirees from representing active members in collective bargaining] is a good rule. Retired members are not as accountable to the current Union membership as active ones. They may be less accessible. They may also be more prone to represent the interests of other retired members instaead of current members. All of these factors may diminish the ability of the Union to react to the changing nature of the work place. They may also expose the Union to legal liability...."),

Fetting v GM Department, CAC Decision (4/4/06), pp 6-8 (historic UAW promises, proclamations, and success in preventing cutbacks on retiree health care benefits cannot be twisted into a requirement that the union disregard economic reality and the long-term best interests of its retired membership, when modification of retiree benefits may be the best hope for restoring economic viability to the company that provides the benefits),

Lapso v Local 1250, PRB Case 1550 (2/20/07) (in decision discussed more fully elsewhere, PRB declines to address argument premised on union's obligation to maximize membership participation).

When a strike is necessary, it is the equivalent of war. Members do not cross each others' picket lines. In cases of great emergency the UAW can even call a general strike.

Article 50 sections 8-9 (in cases of great emergency IEB has power to call a general strike within the industry);

Local 257 v Kellog, 1 PRB 309, 313 (1965) ("A strike in the labor-management field is analogous to a war in international affairs.... A strike is not only an economic weapon; it is also a human situation. People are out of work. Anxiety and apprehension increase as the days pass. Workers' families are daily asking their provider when will they resume work, since some of the children need new clothing or the house requires repairs."),

Douglas v UAW, 8 PRB 331, 343 (1994) (according to PRB, appellants argue compellingly that crossing picket lines, whipsawing, undermining contracts, and interfering in elections violate principles of solidarity regardless of local union jurisdictions).

Third, the union is highly political. The constitution embraces this, uniting employees regardless of affiliation, and encouraging them to participate in civil political life. Inside the union it is the same. A 1993 PRB decision said there was nothing wrong about a local solidarity committee whose genesis lay in discussions with a member of the New Directions Movement, a particular UAW caucus. In other decisions it said political debate is the lifeblood of a democratic institution, even in a one-party union like the UAW, dominated as it is by the Administration Caucus.

Article 2 section 2 (one object of UAW is to "unite in one organization, regardless of ... political affiliation ... all employees under" UAW jurisdiction),

article 41 sections 1-3 (members' duty to "participate in all ... [public] elections through registration and balloting");

Appeal of Piper, 2 PRB 541, 542-43 (1977) (UAW's removal of UAW-appointed local insurance rep, whom the local leadership was out to "hatchet" because of local politics, upheld on theory that UAW investigated carefully and found that even though the problems may have been beyond the rep's control he could no longer function effectively in his job),

Appeal of Kelsey, 4 PRB 46, 47 (1983) ("The UAW is, after all, a highly political institution...."),

Local 148 appealing Powell v Local 148, 8 PRB 129, 130, 138 (1994) ("genesis" of local Solidarity Committee in discussions with member of New Directions political caucus "does not establish that the Solidarity Committee was an adjunct of New Directions"),

Yettaw v Local 599, 6 PRB 236, 241-42 (1992) ("The term 'politics' does not reference traditional partisan political activity, but rather is intended to embrace the spectrum of issues which may be the subject of legitimate debate among union members. [footnote omitted] Such debate is the lifeblood of any democratic institution. Stifle it and that institution will inevitably be crippled or even die."),

Brandt v UAW, 5 PRB 330 (1987), reconsideration denied 5 PRB 337, 342 (1988) (for over 20 years the UAW has been a one-party institution in that the Administration Caucus controls the government),

Downs v UAW, 8 PRB 548, 553 (1995) ("For political issues, there are political processes," being the CAP Councils),

Thielen v Local 72, PRB Case 1479 (10/25/04), pp 11-13 (fact that local president as convener of local press committee is more likely to find fault with articles submitted by critics is simply a fact of political life),

Turner v IEB, PRB Case 1490 (9/2/05), p 17 ("In a context so politically volatile as Local 148, the International Union had some obligation to investigate one faction's argument...."),

Austin v Local 594, PRB Case 1514 (1/24/06), pp 17-19 (drive to recall shop chair is a political process not a punitive one).

On the other hand a decision whether to arbitrate a grievance is not a political question. A shop chair who processes a grievance untimely due to political differences can be brought up on charges before a trial committee. A proved conspiracy to oust a member as chief steward for political reasons would entitle the member to financial damages. Trying to use the PRB itself as a weapon to achieve political goals can get you a summary suspension of membership.

Ruzicka v Local 166, 1 PRB 654, 657 (1971) ("[Appellant] ascribes the motivating influence for this action [processing his grievance untimely] to political differences. Faced with similar allegations, we have heretofore held them subject to trial procedures."),

Dietrich v Local 1313, 1 PRB 773, 776-77 (1972) ("[Appellant] indicates a belief that a conspiracy existed to oust him from his [chief steward] position for political reasons. Were we satisfied that this was the case, we should be willing to entertain the question whether [he should be financially compensated for his improper removal as steward]."),

EP complaint of Tucker, 8 PRB 7, 14 (1992) ("But to attempt to involve and force the PRB to act on the very eve of the UAW's Convention, when our proceedings could only have seriously disrupted scheduled work of the Convention, smacks of an effort by Mr. Tucker to use the PRB as a weapon to achieve his political goals rather than as a forum to consider and dispassionately resolve his claims."),

Soncrant v Local 1889, 9 PRB 538, 541 (1997) (PRB asserts decision whether to arbitrate a grievance is not a political question or a matter of rallying troops to a cause).

Political activity is the lifeblood, but it can also be ugly. In a 1984 appeal the IEB said there was nothing wrong with politics playing a role in a local redistricting procedure. The PRB itself said it was a legitimate political strategem for the UAW to eliminate a region at the 2002 convention because of a surprise result in the election for its director. In a 1994 decision it said forgery of an election protest would be yet another example of a political dirty trick which the Administration Caucus and New Directions Movement are each quite capable of of perpetrating on the other.

Vicola appealing Patrick v Local 653, 4 PRB 108, 117 (1984) (IEB "understands very well that politics may have played a part in deciding the procedure [for reallocation of districts after redistricting; but that] it is neither unusual nor wrong for political considerations to enter into decisions of this nature."),

Douglas v UAW, 8 PRB 331, 344-45 (1994), reconsideration denied (1/10/95) ("This whole dispute is simply yet another manifestation of the ongoing political battle between the proponents of New Directions and the supporters of the Administration Caucus. To be sure, if Neldrett is guilty of the act with which she is charged, her conduct was indeed reprehensible, and she reasonably could be compelled to answer for it. But, viewed from another perspective, even if the allegations against her were proved, it would simply be yet another example of a dirty political trick which each side is quite capable of perpetrating upon the other."),

Davis v UAW, PRB Case 1441 (4/15/03), PP 1-4 ("The Convention's action was a political strategem designed to counter Davis' own political effort to circumvent the Administration Caucus' rule that no one older than 65 may seek election to an International Executive Board office. Nothing in the Ethical Practices Codes prohibits such political maneuvers.").

Ethics, solidarity, politics. A volatile combination. One discerning member summed it up this way:

The union is supposed to protect its members from unfairness, not practice it on each other.

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), record pp 100, 107.

To manage it the union has developed elaborate appeals procedures. It may be they trivialize the union's purpose, especially as they have become more bureaucratic over the years. Maybe they just provide a rubber stamp. One of the PRB's key staff members had an ethical problem himself in 1994.

Again, to the contrary, perhaps the procedures enliven the democratic traditions of the organization. One retiree member, whose record at the PRB is 0-3, commented to her caucus in 2009:

The Convention elects the personnel of the PRB. The CAC are elected delegates. IF we didn't have a one party system [and] IF we had an active membership that elected delegates who supported a strong, militant, democratic union, then the CAC and PRB would function the way they are supposed to. I like the idea of an independent oversight body (the PRB) and the CAC for checks and balances.

Email, Wendy Thompson to Soldiers of Solidarity, 11/24/09.

I leave that discussion to the members. For the time being, my purpose is to explain and demystify the procedures, which the UAW pledges to apply uniformly, and make them accessible to members generally.

The UAW itself knows well enough how to navigate through the process, as an insightful PRB concurrence noted in 1976. But:

members seldom appear twice before us, although the Union is always a party; and when members appear they and their occasional spokesmen almost always know far less about the PRB and the UAW Constitution than does the union. ... But the Union, at least when it appears before us in an adversary role, has no interest in aiding an appellant to frame his case in such a way as to take maximum advantage of our jurisdiction. And if the burden of sophisticated analysis then falls, as it must, upon individual appellants, it is unlikely to be discharged. I stress, though it should not be necessary to do so, that the Union is in no way to be blamed for this state of affairs.

Badura v Local 93, 2 PRB 173, 187-88 (1976) (concurring opinion).

The UAW education department has pamphlets on grievance-handling, local elections, local trials, political action, and other issues. But there is no practice manual on appeals procedures. A resolution recommending a pamphlet and education on UAW appeals went to the 1995 convention and died.

Constitution committee resolution # 696, 31st constitutional convention (1995);

see also proceedings, 21st constitutional convention (1968), p 87 (report of PRB chairman) (recommending that UAW and PRB jointly engage in educational campaign to make average members more aware of constitutional remedies).

Even so, in 2002 the PRB said:

A claim of ignorance of the requirements of the Constitution is not a satisfactory excuse for a failure to abide by its requirements.

Phillips v Ford Department, PRB Case 1420 (12/19/02), p 4,

see also Wartley v Local 849, 11 PRB 421, 425 (2001) (ignorance of rights does not excuse untimely charge).

So with this manual I hope to fill the gap. The method is to have the UAW speak in its own voice (or that of the PRB); cited sources are practically all UAW documents. Occasionally I add my own opinions. The purpose is to move UAW appellate practice to a higher plane, that disputes be resolved cleanly according to union principles, and that the organization be freed for its primary goals of organizing, bargaining, and political action.

Disclosure

I participated, at one level or another, in some of the cases cited or discussed in this manual. Certainly this affects my opinions.

Webster v Local 51, 2 PRB 856 (1981),

Bier v Local 2500, 5 PRB 805 (1990),

Yettaw v Local 599, 6 PRB 236 (1992),

Grant v Local 163, 6 PRB 472 (1992),

Yettaw v Local 599 I, 8 PRB 28 (1993),

Yettaw v Local 599 II, 8 PRB 31 (1995),

Eastman v Local 1292 I, 8 PRB 49 (1995),

Douglas v UAW, 8 PRB 331 (1994) reconsideration denied (1/10/95),

Hale v Local 326, 9 PRB 35 (1995),

Thompson v GM Department, 9 PRB 64 (1996),

Feldman v Local 900, 9 PRB 332 (1997),

Vogen v Local 900 I, 9 PRB 614 (1998),

Vogen v Local 900 II, 9 PRB 624 (2000) reconsideration denied (7/19/00),

Noall v Local 599, 10 PRB 371 (1999),

Butina appealing Petty v Local 1264, 10 PRB 457 (2000),

Reed v UAW, 10 PRB 568 (2002),

Local 2036 v UAW, 11 PRB 135 (2001),

Karras v Local 653, 11 PRB 183 (2001), reconsideration denied (5/11/01),

Engle in the matter of Ellis v Local 600, 11 PRB 209 (2001),

Colley v Local 235, 11 PRB 235 (2001),

Badalamento v Ford Department, 11 PRB 511 (2002),

Davis v UAW, PRB Case 1441 (4/15/03),

Genshaw v Local 5960, PRB Case 1447 (11/20/03),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05),

Karras v Local 653, PRB Case 1512 (11/22/05),

Reighard v UAW, PRB Case 1532 (1/24/06),

Reighard v UAW, PRB Case 1532 II (6/27/06),

Lombard v UAW, PRB Case 1525 (11/15/06), reconsideration denied (1/20/07),

Lapso v Local 1250, PRB Case 1550 (2/20/07),

Bradley v Local 3520, PRB Case 1609 (2/23/09), reconsideration denied (4/22/09),

Hendley v Region 1, PRB Case 1628 (1/25/10);

Ware, CAC, session 10/92,

Funti, CAC, session 11/93,

Johnson, CAC, session 5/96,

Hoskins, CAC, session 5/96,

Perez, CAC, session 6/96,

Gardner, CAC, session 10/97,

McTaggart, CAC, session 10/97,

Shillings, CAC, session 10/98,

Fetting v GM Department, CAC Decision (4/4/06),

Del Morone v UAW, CAC, session 6/09,

Lett v IEB, CAC, session 6/09,

Leonard v UAW, CAC, session 6/09;

Sorice v Region 1, IEB Decision (8/6/07).

I have also sued the UAW and various of its locals, represented the UAW and various locals, and been joined as amicus by the UAW in non-UAW labor suits.

Workers Unity Slate v Harvey, Eastern District of Michigan Case No 570689 (Feikens, 1975) (represented plaintiffs, UAW Local 140 one defendant),

Chrysler Corporation and Smith, 232 NLRB 466, 96 LRRM 1382 (1977), aff'd 1979 WL 6182, 125 LRRM 3063 (CADC, 1979) (represented Smith, complaint against UAW withdrawn),

Conaway v FAA, Appeal UCF-81-89419, UCF-81-8703 (MESC Board of Review, 1/2/90) (represented claimants, UAW amicus for claimants),

UAW v Michigan Department of Mental Health, AAA Case No 54-39-1371-85 (Lyons, 5/27/86) (represented UAW),

DeDuijtsche v UAW Local 2500, Wayne County Circuit Court Case No 87-721665-NO (Olzark, 1987) (represented Local 2500)

Ryan v General Motors Corp and UAW, 929 F2d 1105, 136 LRRM 2995 (CA6, 1989) (represented Ryan),

Meyers Industries, 268 NLRB 493, 115 LRRM 1025 (1984), remanded sub nom Prill v NLRB, 755 F2d 941, 118 LRRM 2649 (CADC, 1985), cert denied sub nom Meyers Industries v NLRB 474 US 971, 120 LRRM 3392 (1985), decision on remand 281 NLRB 882, 123 LRRM 1137 (1986), affirmed 835 F2d 1481, 127 LRRM 2415 (CADC, 1987), cert denied sub nom Meyers Industries v NLRB, 487 US 1205, 128 LRRM 2664 (1988) (represented Prill, UAW amicus for Prill),

UAW Local 594 v UAW, 956 F2d 1330, 139 LRRM 2549 (CA6, 1992) (represented Local 594),

Hoskins v UAW Local 1853, 188 F3d 507, 1999 WL 618074 (CA6, 1999) (represented Hoskins),

Davis v UAW, 390 F3d 908 (CA6, 2004), cert denied 125 SCt 1984 (2005) (represented Davis),

Fowler v UAW, 2006 WL 456012, 2006 Fed.App. 0143N (CA6, 2006) (represented Fowler),

UAW v GM, 2006 WL 891151 (ED Mich, 2006) (represented objector Lopez),

UAW v Ford, 2006 WL 1984363, 39 Employee Benefits Cases 1896 (ED Mich, 2006) (represented objector Lapso).

I am the web steward of Labor Notes, which carries occasional articles about the UAW.

Et Cetera

The tone of this manual is sometimes tentative. In several instances I note uncertainty whether I have the most recent version of a particular UAW document or contract. I ask interested members to contact me and provide updated materials. Being located in remote northern Michigan without an editor, I will depend on help for future updates.

If I state a fact not found in the decision, there should be a citation either to a page of the record or to a UAW document. But a project of this size certainly contains errors, omissions, unclear phrasing, and unfair opinions. You are invited to make suggestions and critiques.

Before the first public release in January 2004, I delivered copies of a draft to the IEB, CAC, and PRB. The cover letter solicited comments or corrections but none came.

Letter, Ellis Boal to CAC, IEB, and PRB, dated 12/10/03, delivered 12/12/03 (enclosing 20 copies of release 0 on floppy disks),

email, Jay Whitman to Ellis Boal, 12/15/03 (acknowledging receipt),

email, Ellis Boal to Jay Whitman, 12/15/03 (offering to provide more floppies, and offering to take any corrections and comments into account before upload).

Corrections should be accompanied by supporting materials in the record of the appeal or some official UAW document. Otherwise, if the IEB, PRB, or CAC as decisionmaker made an incorrect fact-finding, for purposes of this manual we will live with it.

I write for UAW members. The manual does not treat of the relations between the UAW and non-member employees that it represents.

Thanks to Bill Parker, Mike Parker, Ron Reosti, Gregg Shotwell, Jane Slaughter, Wendy Thompson, and Dave Yettaw for encouraging me to write this.

II. DEFINITIONS AND ABBREVIATIONS

Definitions:

• An "appeal" is a proceeding brought under articles 32 or 33.
• An "agreement" and a "contract" are the same thing.
• "Appellant" and "appellee" are the parties in an appeal.
• "Arbitrator" and "umpire" mean the same thing.
• "Article ___ section ___" refers to an article number and section number of the UAW constitution.
• A "charge" is a proceeding brought under article 31 or rarely, articles 10, 30, 48, or 49.
• The "constitution" is the document which is the supreme law of the UAW and its subordinate bodies. It is regularly amended at UAW conventions.
• "Handbook" means the UAW's Local Union Bargaining & Grievance Representative's Handbook.
• "The international" is a term I don't use in this manual. But customarily it means the UAW.

Article 1.

• A "local" means a local union chartered by the UAW.
• "Pocket guide" means the UAW's Grievance Handlers Pocket Guide.
• The "president" means the international UAW president, currently Ron Gettelfinger.
• The "secretary-treasurer" means the international UAW secretary-treasurer, currently Elizabeth Bunn.

Abbreviations:

• "AC" means Administration Caucus.
• "Ag Imp" means Agricultuarl Implement.
• "CAC" means the Convention Appeals Committee.
• "CAP council" means a community action program council.
• "EP" means "ethical practices," usually as an adjective.
• "EPC" in the singular means the "Democratic Practices" ethical practices code unless one of the three other codes is specified. There are four EPCs. In the plural "EPCs" means the four codes collectively.
• "DOL" means the US department of labor.
• "EEOC" means the Equal Employment Opportunity Commission.
• "FEP" means Fair Employment Practices.
• "withdrawal card" means honorable withdrawal transfer card.
• "IEB" means the International Executive Board.
• "LEB" means a local executive board.
• "NDM" means New Directions Movement.
• "LMRA" means the Labor Management Relations Act, also often called the "Taft-Hartley act", 29 USC 141 et seq.
• "LMRDA" means the Labor-Management Reporting and Disclosure Act, also often called the "Landrum-Griffin act," 29 USC 401 et seq.
• "MOU" means a memorandum of understanding, typically between a company and a union.
• "NLRA" means the National Labor Relations Act, also often called the "Wagner act," 29 USC 151 et seq.
• "NLRB" means the National Labor Relations Board.
• "PRB" means the Public Review Board.
• "UAW" unless qualified means the international union, as defined in the constitution, and as distinguished from the locals, and other subordinate bodies and administrative arms.

Article 1.

III. SOURCES

Constitution, bylaws

Thought of as a contract among all members, the UAW constitution is the "supreme law" of the union. It governs the convention itself, even while amending the constitution. Local bylaws may not contradict it. If you are considering an appeal of anything, get a current copy. Last amended at the 2006 convention, it has a blue cover. Printed constitutions are freely available from your local union. There is also one on the UAW website.

Article 3 (constitution is supreme law of UAW and can be amended only by majority vote of delegates at conventions),

article 8 sections 15-16 (amendment procedure);

Schrade v UAW, 3 PRB 370, 376 (1983) (language of constitution, not historical practices of convention, are dispositive),

Shinn v Region 1A, 6 PRB 250, 254 (1991) (constitution supreme law of UAW, though president and IEB may interpret it),

Ford v UAW, PRB Case 1529 (5/8/06), pp 7-8 (local bylaws may not contradict the constitution).

Unlike a contract, the constitution takes equitable claims and defenses into account.

Sonnier v UAW, PRB Case 1548 II (7/19/07), pp 6-8, 14-15 (because of nearly-four-year delay occasioned partially by unreasonable behavior of appellants' counsel, "equity favors a dismissal" of charge of unbecoming conduct which otherwise would have been referred to a trial committee);

see also Grima v UAW, PRB Case 1621 (9/16/09), p 16 ("Essentially, appellants maintain that fairness requires the International to consider their appeal regardless of the technical application of Article 17. There is a persuasive logic to this argument particularly in light of the fact that the International Union delayed its processing of these apppeals for such a long time. Nevertheless, we do not believe that the equitable considerations cited by appellants require further proceedings in this particular case.").

When you get one in hand, start by reading article 33. Then read it again. It is sometimes confusing. But given that appeals stand or fall on it, it is well to get to know it.

If the appeal involves anything that happened within the local union you should also get the local bylaws.

Within a local, initial responsibility for enforcing the constitution lies with the local president. Within the UAW generally, it is the president and IEB.

Article 12 section 6,

article 13 section 8,

article 40 section 1.

Contracts

If the appeal involves the handling of a grievance against the company then you should get a copy of the national and local agreements, or at least those parts that have bearing on your appeal. These would include any shop committee settlements resulting in changes to or modifications of a contract; such settlements must be reported to and made available to the members. So must verbal changes or modifications agreed to by the shop committee; they must be reduced to writing and given to requesting members.

Article 19 section 1 (agreements must be reduced to writing and signed);

pocket guide, pp 49, 173 (member has right to copy of contract);

Hopkins v Local 730, 1 PRB 469, 474-75 (1969), vacated 1 PRB 477 (1969) (oral agreement of shop committee must be ratified),

Strohmeyer v GM Department, PRB Cases 1434 and 1439 (12/22/03), p 21 (memo which was not signed and has been disavowed by union and company officials is of no force and effect),

Aston v Local 1714, PRB Case 1551 (1/24/07), pp 8-9 (though settlement of equalization-of-overtime grievance under 1999 contract was never put into writing, 2003 contract introduced team concept which favored flexibility and included a transition period, so it was reasonable for union to conclude 2003 contract did not require union to abandon settlement agreement).

My experience is that UAW locals freely give copies of contracts to requesting members covered by them.

I have the 2003 GM agreement. But my copies of the Ford and Chrysler agreements are dated 1996. I would appreciate receiving 2003 copies from interested members. The UAW has posted the 2003 highlights, but not the 2005 amendments at GM and Ford.

Constitutional changes and retroactivity

If you cite a decision be careful that the constitutional or contractual provision on which it is based has not been amended since the decision.

See for instance Turner, 1 PRB 12 (1958) (trial, notice of hearing, proxy quorum),

Szymczak v Dewyea, 1 PRB 35 (1958) (exhaustion of UAW remedies before a member can sue a fellow member),

Smith, 1 PRB 44 (1958) (composition of appeals committee),

Smith, 1 PRB 66 (1958) (composition of appeals committee),

Gaikowski, 1 PRB 84 (1959) (appeals committee hearing),

Local 685, 1 PRB 122 (1960) (subordinate body),

Kulinski v Rostek, 1 PRB 142 (1960) (trial procedure),

Ellis v Lindy, 1 PRB 154 (1960) (trial and penalty in amalgamated local),

Davis, 1 PRB 214 (1961) (appeal under predecessor of article 31 section 19, of IEB requirement in 1961 that appellants execute non-Communist affidavit as condition of restoration of membership rights suspended in 1953, is to convention because convention rejected appeal of suspension in 1953, despite that election to appeal to PRB was unavailable in 1953 because PRB didn't exist then),

Weissman v Local 122, 1 PRB 336 (1964) (effect of discharge on membership relationship),

Badura v Local 93, 2 PRB 173, 178 (1976) (scope of PRB jurisdiction).

If there has been a constitutional change, sometimes there is a question on its retroactivity.

Proceedings, 24th constitutional convention (1974), pp 224-29 (article 48 section 6, debate on retroactivity of procedure for collecting non-dues money);

Appeal of Atwan, 1 PRB 95, 96 (1960) (suggesting AFL-CIO EPC was not retroactive),

McCreesh v Local 1152, 3 PRB 122, 128 (1981) (PRB jurisdiction of grievance appeals),

Resnick v Local 906, 3 PRB 221, 225-27 (1981) (PRB jurisdiction of grievance appeals).

Presidential interpretations

Article 13 section 8 provides that the president shall decide disputes, controversies, and questions of constitutional interpretation, except for appeals under articles 32 and 33. Appeals from presidential interpretations under article 13 section 8, and all other presidential decisions, go first to the IEB, whose review power is unlimited.

Article 12 section 18;

Reighard v UAW, PRB Case 1532 (1/24/06), p 5 (by its inherent power IEB may overrule, rescind, reverse, or repeal any decision of the president),

Williams v UAW, PRB Case 1540 (8/2/06), p 18 ("Article 13, §8, states that the President shall resolve disputes and controversies which are not addressed by procedures and conditions already outlined in the Constitution. [footnote omitted]")

Where an interpretation under article 13 section 8 goes from there is confusing. What the section says is "to the Convention." But the CAC is a standing committee of the convention empowered to decide appeals for it. There is no appeal from a CAC decision to a convention.

The PRB is not helpful on this point. In its 1989 Taylor decision, it said on the same page:

• "[a]ppeals from Article 13 §8 interpretations may be had only to the Convention Appeals Committee," and
• "the route [is] prescribed by Article 13 §8, that is, to the International Executive Board and then to the Constitutional Convention."

My own view is that a presidential interpretation can be appealed to the IEB and then the CAC.

At any rate a presidential interpretation is of lesser weight than the constitution itself. Article 13 section 8 procedures only apply if the section is specifically invoked and both parties agree to its submission. In a 1996 appeal the PRB said that a presidential ruling under this section arguably should be circulated to the IEB under article 33 section 3(d) review by the full international executive board, the effect being that if no IEB member objects to it within ten days it automatically becomes the decision of the IEB.

Special note to article 33 of 2006 constitution, p 173 (matters appealed to CAC are considered to have been decided by the convention),

Oates v UAW, 1 PRB 170, 172-73 (1961) (no deferral to president under article 13 section 8 when issue comes to him as IEB's agent to receive appeals directed to it),

Ryan v UAW, 1 PRB 186, 189-90 (1961) (presidential interpretation based on disputed facts will not bar review of the facts, appellant not having joined in submission of question to president under article 13 section 8 he has not elected that procedure or waived right of appeal to PRB),

Weissman v Local 122, 1 PRB 336 (1964) (presidential interpretation ratified by IEB in 1951 does not rise to level of constitutional provision, and cannot substantively change or add to the constitution),

Payne v Local 453, 1 PRB 580, 582 n 1, 583 n 3 (1970) (decision of nine-member committee became decision of IEB after ten days unless IEB member objected),

Lain v UAW, 1 PRB 482, 483-84 (1968) (article 13 section 8 procedures are not actually invoked unless a specific request is made for a determination thereunder and unless both parties to the dispute agree to the submission),

Balicki v Local 47, 2 PRB 931, 935-36 (1981) (in order for article 13 section 8 procedures to be invoked there must be a specific request by a member for a constitutional interpretation),

Schrade v UAW, 3 PRB 370, 377 n 11 (1983) (though article 13 section 8 might control appeal, no party having raised the issue the PRB will not consider it),

Vicola appealing Patrick v Local 653, 4 PRB 108, 112 (1984) (primary but not exclusive authority for interpreting the constitution is the president, the IEB, and convention; PRB will overturn interpretations of the president and IEB only in the event of "clear error"),

King v Local 600, 5 PRB 265, 268 (1986) (appellant proceeded under article 13 section 8 so there is no PRB jurisdiction),

Taylor appealing Russell v Local 25, 5 PRB 680, 688-91 (1989) (limitation of article 33 section 2(a) replicates that of article 13 section 8 and defeats jurisdiction of PRB even though appeal was not decided under article 13 section 8, since to decide appeal PRB must affirm or overrule an official 1959 constitutional interpretation),

Sabin v Local 599, 5 PRB 566, 570 (1988) (unless a member requests it president may not defeat PRB jurisdiction by declaring interpretation to arise under article 13 section 8),

Douglas v UAW, 8 PRB 331, 343-45 (1994) (exception in article 8 section 13 allows PRB to review constitutional interpretations of president made during an appeal, but PRB will accord a presidential interpretation great weight),

Thompson v GM Department, 9 PRB 64, 73-74, 78 n 17 (1996) (part of appeal which was decided under article 13 section 8 arguably should have been circulated to IEB members, and PRB recommends to president to grant extension of time now to appeal president's ruling to IEB),

Reighard v UAW, PRB Case 1532 II (6/27/06), p 7 n 18 (article 13 section 8 inapplicable because there was no request for a constitutional interpretation and no need for one because the requirements are so clear),

Williams v UAW, PRB Case 1540 (8/2/06), pp 18-19 (president may not invoke his powers under article 13 section 8 without the consent of the appellant as a means of defeating PRB jurisdiction);

letter, Jay Whitman to Ellis Boal, 10/14/97 (where an appeal is underway article 8 section 13 leaves constitutional interpretation to the tribunal).

In one remarkable appeal, the PRB upheld a presidential interpretation that relied on specific language in the constitution and in the convention debates, even though it agreed that on close reading neither the constitutional language nor the debates actually supported the president. The PRB majority explained the ruling, saying the point was it was being sensitive to the "spirit" as well as the language of article 13 section 8.

Douglas v UAW, 8 PRB 331, 341, 343-44 (1994).

IEB interpretations get even more deference than presidential interpretations.

PRB decisions

Throughout this manual are citations to PRB decisions, always listed in order of PRB case number.

I use two formats for citing PRB decisions. First, decisions through #1200 in mid-1998 have been bound into eight volumes. There are also two index volumes. Actually, the eight are numbered 1-6 and 8-9 in roman numerals; I think they just forgot about 7.

I cite decisions in bound volumes by volume number, page number, year, and sometimes page number of a particular passage within the decision. For example Moran v Agricultural Implement Department, 6 PRB 303 (1992) is a decision at page 303 in volume 6, and Brandt v International Union, 5 PRB 337, 348 n 15 (1988) is a case in volume 5 beginning on page 337, with a cited passage on page 348 footnote 15.

Starting with # 1401, I cite PRB decisions by number, date, date of reconsideration if any, and page number, such as Bradley v Local 3520, PRB Case 1609 (2/23/09), reconsideration denied (4/22/09), or Lapso v Local 1250, PRB Case 1550 (2/20/07), p 12.

For reasons I don't understand, the union lists some case names in a non-adversarial manner, that is, with only one party in the caption rather than two.

My citations use a personal shorthand. If there are two or more parties one one side of a case caption I list only the first. Sometimes I abbreviate the names of union entities. But the numbered parts of citations should be correct.

Compare Genshaw v Local 5960, PRB Case 1447 (11/20/03), p 6 n 11 (correcting caption as styled by IEB).

Copies of decisions issued through the end of 2003 (# 1455) are available to members at no cost from the president's office and from the PRB's office. Until then, the PRB published all decisions to various public libraries, so members could do research there. I contacted the PRB and the president's office in 2002 about getting a list of the libraries for listing in this manual. The PRB referred me to the UAW, which did not respond. Anyway, in 2004 the PRB started a website and began publishing decisions online. You can also download them here. The first is # 1456.

PRB rules of procedure series 17, rule 8 (10/1/03) (PRB decisions are sent to various libraries, media, and subscribers),

PRB rules of procedure series 18, rule 8 (7/1/04) (PRB decisions are posted on its website sixty days after issuance, unless prior written objection is received from any party),

email, Ellis Boal to prb@htdconnect.com, 12/10/01 (requesting list of public libraries to which PRB decisions are sent),

letter, David Klein to Ellis Boal, 2/22/02 (referring request to the UAW),

letter, Ellis Boal to Dottie Jones, 3/1/02 (repeating request to UAW).

Convention debates

Sometimes PRB decisions cite convention debates or IEB debates. Or you might wish to refer to them yourself in making an argument in an appeal.

Oates v UAW, 1 PRB 170, 172 (1961), second decision 1 PRB 174 (1962), third decision 1 PRB 178 (1962) (predecessor to article 33 section 3(d)),

Davis, 1 PRB 214, 217-18 (1961) (predecessor to article 31 section 19),

Dimeo v Local 72, 1 PRB 459, 462-63 (1968) (LEB members-at-large not executive officers),

Bridgewood v Local 707, 1 PRB 533, 537 (1969) (predecessor to article 10 section 7),

Appeal of Collins, 1 PRB 694, 698 (1971) (strike benefit rules),

Liddell v UAW, 2 PRB 92, 102, 104, 106 (1974) (skilled trades separate ratification rights),

Poszich v UAW, 2 PRB 125, 135, 137, 139 (1974) (skilled trades separate ratification rights),

Unit 1, Local 412, 2 PRB 251, 261-62 (1975) (predecessor to article 33 section 3(f)),

Stevens v Local 595, 2 PRB 493, 498 (1976) ("out-of-work" credits),

Schrade v UAW, 3 PRB 370, 373-78 (1983) (reaffiliation with AFL-CIO),

Taylor appealing Russell v Local 25, 5 PRB 680, 684, 689-90 (1989) (voting rights of members of defunct units in amalgamated locals),

Yettaw v Local 599 II, 8 PRB 31, 38-40, 42-43 (1995) (vote margin necessary to suspend local bylaws, delegates' travel expenses to convention),

Douglas v UAW, 8 PRB 331, 341 (1994) (standing of member of one local to charge member of another local),

Thompson v GM Department, 9 PRB 64, 69-71 (1996) (article 33 section 2(b)),

Lescoe v Local 900, 10 PRB 603, 609 (2000) (article 6 section 4 dating membership retroactively to first day of month in which member joined);

but see McKenzie v UAW, 4 PRB 73, 76 (1984) (though time limitations of article 33 section 4(b) date from time of appellant's knowledge of action appealed, date of knowledge of non-appellants control in this appeal, based on apparent intent of convention, which PRB determines without reference to convention debates),

Grima v UAW, PRB Case 1621 (9/16/09), pp 13-14 ("Similarly, legislative history offered to explain provisions of the UAW Constitution is always acceptable and welcome. What we mainly learn from the history regarding Article 17 of the UAW Constitution is that its application has been a topic of concern for a long time. These bits of conversations are interesting, but the last word on the subject must always be the text of the Constitution itself.... We believe, however, that the text in Article 17 is sufficiently clear to resolve the issue of appellants' standing to protest the rerun of the election at Local Union 174, without the need for any further explanations.").

UAW debates are sometimes difficult to come by, but in the past I have found the Wayne State University's Walter Reuther Library helpful for doing research.

CAC and IEB decisions

I cite few CAC or IEB decisions. IEB decisions are not published or summarized anywhere, that I know of. CAC decisions are summarized in the CAC report at each convention. I have the reports only at the conventions of 1995, 1998, 2002, and 2006. I have no actual decisions except the few in which I participated. Without success, I have asked the CAC to mail me copies of its decisions and reports.

Letter, Ellis Boal to Stan Geis, 9/26/97 (requesting and offering payment to be on CAC mailing list for decisions and convention reports),

letter, Jay Whitman to Ellis Boal, 10/14/97 (responding to other parts of 9/26/97 letter).

The summaries are not always clear as to which party is the appellee. Also the summaries do not show the date of each decision. They show the dates of the CAC session -- they last 2-3 days -- at which the CAC heard the appeal. Accordingly, my format for CAC decisions lists only the appellant's name, and the first date of the session. Appeal descriptions are taken from the summaries, not actual decisions.

Union past practices

Past practices are of two types, those of the company and those of the union. This section is about union past practices. Company past practices relied on in the grievance procedure are discussed elsewhere, but the PRB analyzes the two types the same way. With a couple of exceptions, the rule is that practices may help to understand or interpret language, but the PRB will adhere to specific rules set out in in the constitution or bylaws, even in the face of longstanding contrary practices.

Wright v Local 501, 1 PRB 78, 80-81 (1959) ("The specific provisions of [the local] bylaws may not be simply disregarded by an organization which functions democratically on the ground that changed circumstances have made the provisions unsuitable. The democratic process is to be used in keeping pace with new conditions. (Footnote: We note the bylaws were revised in 1956.) The usurpation by the few of the right possessed by the many on the ground that it was inconvenient or difficult to refrain from doing so cannot be condoned by this panel."),

Beach v Local 653, 1 PRB 502, 505 (1969) (if local decides to change its practice and insist on literal adherence to a contractual provision it must first announce the change and then enforce the policy rather than the reverse),

Schrade v UAW, 3 PRB 370, 376 (1983) (PRB looks to the language of the constitution in rejecting appeal which challenged decision to reaffiliate UAW with AFL-CIO, made by IEB after advisory votes in regional conventions, rather than made by convention vote, despite historical UAW practice of deciding affiliations by convention votes),

Sanders v Local 685, 8 PRB 257 261 n 2 (1994) (if local practice is to notify members of the date of consideration of their appeals, then the notices should be sent sufficiently in advance to the member actually receives it before the meeting),

Pearson v UAW, 10 PRB 390, 405 (1999), reconsideration denied (10/28/99) (in light of past practice in this and other locals, ex post facto interpretation of local bylaw regarding compensation of president offends EPC),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), p 11 (in ordering re-investigation by IEB, PRB notes appellant's removal as local health and safety rep was contrary to settled practice, contrary to assurances of union official on which she relied, and contrary to union policy that frowned on using local politics as a basis for changing reps),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05), pp 17, 22 (had local president requested appellant's removal as appointee of DaimlerChrysler department, the established past practice, the promise made to her at the time of her appointment, and the EPC guarantee of uniform treatment might well have constrained the department director's discretion to remove her),

Ford v UAW, PRB Case 1529 (5/8/06), Pp 6, 7-8 (despite 30-year history that delegate allocation worked well in amalgamated local, unambiguous language in the constitution requires that every autonomous unit have at least two delegates to the joint council),

but see Oates v UAW, 1 PRB 170 (1961), second decision 1 PRB 174, 176-77 (1962), third decision 1 PRB 178 (1962) (IEB's literal interpretation of timeliness provision not in keeping with fair play),

Valdez v Local 31, 9 PRB 298, 301-02 (1996) (PRB decisions over the years saying officers and agents are not answerable to charges arising out of discharge of official responsibilities may be wrong in light of article 31 section 9; on the other hand article 31 section 9 may be a relic overlooked by constitutional drafters in 1962),

Lescoe v Local 900, 10 PRB 603, 608-09 (2000) (despite constitutional provisions indicating membership status begins on the date of local approval of a worker's application to join union, "we are convinced by the Union's long history of making membership retroactive to the first day of the month in which an individual applies, pays dues or signs a check-off authorization" that membership begins on the first day of the month of the application),

Dedic v UAW, PRB Case 1562 (7/20/07), pp 12 (20-year UAW past practice argues strongly for local's interpretation and justifies UAW's refund of local's arrearage payment, but against this is the fact that had the local's view been intended by the parties the agreement would have so stated explicitly).

Union past practices specifically involving the IEB are discussed elsewhere.

Pamphlets, administrative letters, Solidarity

The UAW Education Department has a variety of publications for local unions. These are official expressions of UAW policy and members may rely on them. Below I list the most recent editions of the publications I have and their dates. I would appreciate hearing from a member with other or later editions of the same publications.

Grievance Handling: A Handler's Guidebook for Success, December 2005,

Local Union Bargaining & Grievance Representative's Handbook, August 1996 (the "handbook"),

Local Union Bargaining & Grievance Representative's Workbook, August 1990,

Local Union Bargaining & Grievance Representative's Answer Book, January 1991,

UAW Grievance Handler's Handbook, undated,

Grievance Handlers Pocket Guide (undated with purple-and-white cover), $1.50,

UAW Local Union Civil Rights Committee Policy and Procedures Guidebook (undated; the most recent dated document in the edition I have is the 1992 version of article 2 section 2.),

Guide for Local Union Bylaws, July 2002,

Local Union Trials, April 1994,

Guide for Local Union Elections, April 1998, $1 (the "election guide"),

10 Points for Meetings, February 1998 (basic parliamentary procedure),

The Meeting Will come to Order, Simplified Guidelines to Parliamentary Procedure, April 1994.

The President's Job, January 1989,

The Local Union Financial Officers, January 1989,

The Local Union Recording Secretary, January 1989,

Local Union Standing Committees and How They Work, September 1998,

Accepting the Challenge, Leadership Skills, January 1989.

Since 1948 the UAW has also published periodic dated and numbered administrative letters to the local unions. I have some but do not receive them regularly. I assume the president's office collects and keeps them in researchable form for interested members. Occasionally the PRB relies on them as authoritative.

Weissman v Local 122, 1 PRB 336, 338 (1964) (presidential interpretation lacks authority of constitutional provision),

Liddell v UAW, 2 PRB 92, 117-18 (1974) (explanation of precedent regarding contract ratification),

Poszich v UAW, 2 PRB 125, 140-41 (1974) (explanation of precedent regarding contract ratification),

Stevens v Local 595, 2 PRB 493, 499 (1976) (presidential interpretation published in administrative letter lacks authority of constitutional provision),

Ramey v Local 652, 3 PRB 393, 396 (1983) (slate voting),

Brandt v UAW, on reconsideration 5 PRB 337, 343 (1988) (administrative letters are used to announce important policy determinations),

Taylor appealing Russell v Local 25, 5 PRB 680, 688-91 (1989) (eligibility of laid-off and retired members in closed unit of amalgamated local to vote for officers),

McKenzie v UAW, 8 PRB 108, 114 (1993) (IEB can change its mind but administrative letters must be uniformly applied),

Austin v Local 594, 10 PRB 439, 444 (1999) (administrative letters are the device by which matters of union policy are normally communicated to subordinate bodies),

Dedic v UAW, PRB Case 1562 (7/20/07), pp 4 (dues obligations for employees in public and health care sector and other non-traditional areas).

The UAW also publishes a magazine for members, Solidarity, to educate them and acquaint them with UAW activities. The magazine is under the supervision of a committee of three IEB members, which is itself responsible to the IEB. It is mailed to all members, and is also online. I recommend that members read it regularly, though not being a member myself, I do not.

Article 29 sections 1-6;

but see Liddell v UAW, 2 PRB 92, 105 (1974) (dissent) (Solidarity responsible for impression of skilled-trades members that they had a right of separate ratification),

Poszich v UAW, 2 PRB 125, 148 (1974) (dissent) (Solidarity responsible for impression of skilled-trades members that they had a right of separate ratification).

Websites

The UAW and PRB each have a website. The UAW's is http://uaw.org . It has several important features, including Solidarity magazine, news about unions and strikes, highlights of the major auto contracts, summaries of UAW procedures and protocols, a list of the locals with their own websites, a list of UAW-made products, and the text of the LMRDA. Recently the constitution was added.

Unfortunately there are no databases of contracts, umpire decisions, administrative letters, or CAC decisions. The grievance-handlers' guide, and the guide for local union election committees are not posted. That is unfortunate. They are useful documents. When I emailed the web steward in 1996 to ask why the constitution was not there she answered

C'mon Ellis, lighten up. This is a site to promote some basic unionism and get news out fast. I'm sure that you and other lawyers (and anyone who goes to a convention) can get your hand on the constitution and PRB decisions.

Email, Nancy Brigham to Ellis Boal, 5/7/96.

Nine years later a constitution was posted.

The PRB now has its own site, http://www.uawpublicreviewboard.org, on which decisions beginning in 2004 are posted in numerical order. They start with # 1456. The site is an improvement from the old system of mailing copies of new decisions only to the parties and to inquiring observers like myself. Now everyone has automatic and immediate access. Soon presumably the site will add decision summaries so members can research topics without having to read every case.

Announcement, PRB director Barbara Klein, 5/10/04.

The Walter Reuther Library in Detroit has a site at http://www.reuther.wayne.edu/ with official and semi-official UAW archival material, such as the transcripts of old convention debates and caucus literature.

Other websites of interest to UAW members are mentioned occasionally in this manual, but these three are the only official UAW sites.

Clarity

There are sometimes problems reading UAW documents. For example:

• Since 1992, article 33 section 4(h) of the constitution has begun with this sentence:

Hearings, when held, shall be such as, in the discretion of the tribunal, and shall bring to light all the facts and issues involved.

• The 1989 constitution had so many printing errors it was reprinted in 1990.

Letter, David Klein to Ellis Boal, 9/8/95 (highlighting article 33 section 3(d), article 10 section 20).

• Article 37 section 3 says local bylaw changes don't become effective until submitted to the IEB for ratification, except for those enacted pursuant to section 5. But section 5 reverses the exception; it requires specific bylaws concerning non-attendance at meetings by elected officials, and it says bylaws on that subject do not become effective until submitted to and approved by the IEB.
• Since 1983, article 32 section 7 has allowed the PRB to assess a non-monetary penalty against a frivolous EPC claimant

  limited to suspension from membership for a period of not less than three (3) months.

• In 1964 the PRB said interpretation 4 of article 17 section 2, issued originally in 1951, was not a mere guideline but improperly added to the constitution. Yet it continued to appear, substantially unchanged, in printed constitutions for 42 years.
• In a 1996 decision the PRB noticed a contradiction between article 31 section 9 and a long line of its own decisions saying local officers are not answerable under article 31 for charges of dereliction of duty. It recommended that delegates at a future convention resolve the problem, but they haven't.
• In a 1992 appeal, the Local 51 bylaws were so obscure that the PRB recommended the local retain an instructor in English composition. By the time of another appeal in 2001 the local had not.

Campbell appealing Cox v Local 51, 6 PRB 335, 343 (1992),

Nardicchio v UAW, 11 PRB 61, 67 (2001);

compare Lefebvre v Local 1163, 4 PRB 361, 363 (1985) (PRB conducts its affairs in English).

• In 1996 the PRB could not agree within itself whether the second-to-last paragraph of article 33 section 2(b) was comprehensible.
• The 1996 handbook recommends that at the beginning of contract negotiations local bargainers demand data from the company concerning "[n]ew order backlogs -- current and year end for 1982-84."
• Referring to the provisions regarding dues obligations of discharged members the PRB said in 2005:

We question whether a set of consistent rules regarding the obligations of discharged members can actually be gleaned from these provisions, but in any event, it is clear that an understanding of these provisions cannot be imputed to individual members.

Karras v Local 653, PRB Case 1512 (11/22/05), p 12.

• A dissent in a 2006 appeal noted that article 35 section 3(a) is "inherently in conflict" in guaranteeing proportional representation among delegates to joint councils in amalgamated locals, and also guaranteeing that small autonomous units including single-member units will have two delegates.

Ford v UAW, PRB Case 1529 (5/8/06), pp 8-9 (dissent).

• In a 2009 appeal the PRB observed that honorable withdrawal cards are issued routinely to laid-off or fired members. But the president's office argued: "Appellants have argued that they never received any honorable withdrawal card. There is no physical card; that is old language."

Article 16 section 19 ("Unless any such member shall [properly certify entitlement to "out-of-work" credits] the member shall automatically be noted on the Local Union's records as having been issued an honorable withdrawal transfer card....");

Bradley v Local 3520, PRB Case 1609 (2/23/09), reconsideration denied (4/22/09), pp 13, 22, 28.

• As noted more fully elsewhere, articles 16 and 40 are contradictory on whether a local's duty to notify members of dues arrearages is mandatory or discretionary.

Article 16 section 10,

article 40 section 9.

What if a situation arises which convention delegates did not consider when drafting the constitution? May provisions be applied which the delegates would have adopted had the situation occurred to them?

In a 1978 decision the PRB said no: "[I]t may be ... that the issue [appeal of the procedures leading to an acquittal of a member on charges] was never considered by the framers ... [but] we are bound by what the Constitution actually provides and not by what we might think it ought to provide."

But in a 1984 ratification appeal it said time limits barred the appeal even of an appellant who hadn't been hired yet and had no way of promptly knowing of the action he was now appealing. Compare article 33 section 4(b) which sets the time limits. It speaks of the time that the "appellant" first becomes aware or reasonably should have become aware of the appealed matter. But the PRB reasoned that starting the limitations period running at the time of knowledge of a non-appellant local rep was the "apparent" intent of the convention. It cited no convention debates, or IEB or presidential interpretation, to show how this intent was apparent from the word "appellant." I believe in 1984 it did what it said it would not do in 1978.

Laughery v Local 72, 2 PRB 717, 721-23 (1978), reconsidered 2 PRB 724 (1980) (PRB is bound by what constitution actually provides not by what PRB thinks it ought to provide; it may be that article 31 section 11 bars an appeal from a judgment of acquittal under any conceivable circumstances, but charging member can appeal procedure by which verdict of acquittal was reached);

Schrade v UAW, 3 PRB 370, 376 (1983) (historical convention events are not dispositive, PRB must look to the language of the constitution to decide appeal),

McKenzie v UAW, 4 PRB 73, 76 (1984) (apparent intent of convention was to bar appeals by members who were not yet members at time of challenged action);

see also Pfeiffer v Local 556, 1 PRB 485, 489 (1968) (PRB rejects interpretation of word "appellant" to refer to status of party when he or she was before the IEB, though that may have been intent of drafters of article 33, because holding would be strained in light of other language),

Tencza, 1 PRB 497, 501 (1968) (PRB orders local to enact bylaw mandated by predecessor of article 37 section 5),

Douglas v UAW, 8 PRB 331, 341, 343-45 (1994) (PRB must be sensitive to the spirit as well as the language of consatitution).

Most of the time common words have their customary meanings.

Smith, 1 PRB 44, 47-48 (1958) ("shall"),

Oates v UAW, 1 PRB 170, 173 (1961), later decision 1 PRB 174 (1962), still later decision 1 PRB 178 (1962) ("shall"),

Balicki v Local 47, 2 PRB 931, 935 (1981) ("Unless the terms employed in the Constitution are to be stripped of their common meaning, there can be no question but that the expenditure itself is an action."),

Schrade v UAW, 3 PRB 370, 378 n 14 (1983) ("such"),

Wright v Local 1069, 5 PRB 775, 789 (1990) ("and/or"),

Douglas v UAW, 8 PRB 331, 340 (1994) ("must");

but see Hess v Local 287, 1 PRB 375, 378-79 (1966) (the term "any" employer excludes certain employers),

Testerman v Chrysler Department, 9 PRB 151, 164 n 11 (1996) (in context, word "may" is mandatory),

Davis v UAW, PRB Case 1441 (4/15/03), letter, Ron Gettelfinger to PRB, 1/16/03, pp 21-22 ("must" is not mandatory),

Shotwell v GM Department, PRB Case 1504 (11/29/05), p 21 ("ratification" may precede negotiation);

but see Berryman v Skilled Trades Department, 10 PRB 222, 230 (1998) ("similar" trades are not necessarily "related" trades).

Under ordinary contract principles, ambiguities in a contract are construed against the drafter. In interpreting collective bargaining agreements for instance, if an arbitrator has no other way of determining the intent of a document, he or she resolves doubts against the party that proposed the language during bargaining.

Elkouri and Elkouri: How Arbitration Works, Fourth Edition (BNA, 1985), pp 362-63.

Should ambiguous provisions in the UAW constitution therefore be construed against the UAW or its locals in appeals by members, particularly members who were not delegates to the conventions which adopted the language?

The PRB and CAC have not addressed this particularly, but the answer would seem to be no, on the theory that the constitution was drafted by all the members:

Appellants are members of a voluntary, unincorporated association, the UAW, which is governed by a Constitution that is the product of the membership's own choices and determinations. The Constitution is, in effect, a mutually agreed upon charter decreeing the nature of the relationship of member to member, and member to organization.

Ponce v Local 492, 8 PRB 449, 453 (1994);

see also Hess v Local 287, 1 PRB 375, 379 (1966) ("The laws which a union adopts are, like any other laws, binding upon those who comprise its society.... [E]ffective collective efforts depend for their success upon the degree of adherence by all who are involved.");

Local 257 v Kellog, 1 PRB 309, 311 (1965) (a "contractual" relationship),

Liddell v UAW, 2 PRB 92, 111 (1974) (dissent) ("contract"),

Poszich v UAW, 2 PRB 125, 144 (1974) (dissent) ("contract"),

Shinn v Region 1A, 6 PRB 250, 253 (1991) ("contract"),

Hammersmith v GM Department, 6 PRB 439, 442 (1992) ("charter");

but see Dedic v UAW, PRB Case 1562 (7/20/07), p 12 ("Finally, we assume that the International Union is primarily responsible for drafting affiliation agreements with new UAW Locals, and it is clear that such agreements require the approval of the IEB. Under the circumstances, any ambiguities in the agreements would be construed against the International Union.").

Finally, sometimes to discern the meaning of a document you must consider what it does not say as well as what it does say.

So even if it is difficult, try to make the best sense you can out of UAW documents you have to deal with. As these decisions say, governing documents are thought of as contract among the union and its members.

Procedural advice

At any rate a source for procedural advice about appeals is the president's office and the PRB. I have always found both to be helpful.

Letter, Jay Whitman to Ellis Boal, 10/14/97 (excepting when appeal is underway, advice about procedural and substantive constitutional issues is available to members from the president's office, but whether and how to advise is in president's discretion),

PRB 48th annual report (2005), p 5 (online version) (procedural advice available from PRB via phone, fax, letter, or email);

Edwards v Local 148, PRB Case 1468 (6/22/04), p 13 (request for advice to president from local president, and response from president's administrative assistant, were not unbecoming conduct).

Finally, it should be noted that UAW sources are not always terrific. Ronald Woods was a member of Local 862 working in production at a Ford assembly plant in Louisville. In 1992 he asked the skilled trades committee chair about getting into industrial truck repair, a skilled trade. He already had the skills for an automotive mechanic card. The local agreement had the automotive mechanic classification and paid it a skilled wage, the chairman told him. The UAW then issued him an automotive mechanic journeyperson card. So he dropped his pursuit of an industrial truck repair position, and awaited a vacancy in his new trade.

One came up in 1999. The company awarded the job to a senior member who had no card (though the union quickly got him one). Brother Woods grieved, but the union dropped it. Officials explained that automotive mechanic was not a recognized skilled trades position, and the skilled pay rate was "in the nature of a gift."

Woods then applied for and got the industrial truck repair position based on the same skills he had seven years earlier in 1992. Given the contract language he did not protest dropping the grievance. But he appealed the advice to get the worthless automotive mechanic card, which caused him to forego $3.35/hour for several years. He argued:

Union representatives should be educated and informed well enough to provide guidance to their members. The Union should be held accountable for the policies it administers. These policies affect people's lives.

The UAW defended the appeal in two sentences:

In his appeal to the Public Review Board, appellant has not asserted that hostility, discrimination, or bad faith on the part of the International Representative affected the handling of his grievance. Therefore the appeal should be denied.

That convinced the PRB. It added:

We must say it appears that Woods has been the recipient of some very bad advice. It is hard for us to understand why, when he expressed an interest in acquiring the skills of a journeymen, his Union officials would have recommended that he enter a dead-end classification that is not even recognized as a skilled trade in the UAW/Ford National Agreement. That said, there is no provision in the UAW Constitution requiring competence on the part of those seeking or holding positions that involve the dispensation of advice. The Union does, however, regularly conduct educational seminars at its Black Lake, Michigan, [family education center] and it actively encourages its Local Unions to take advantage of these education programs for their elected and appointed officials. This is probably the most the Union can reasonably do to prevent the unfortunate circumstance that resulted in Woods receiving the erroneous advice that had a substantial negative effect on his career.

Woods v Local 862, 11 PRB 332, 335 (201);

see also Karras v Local 653, PRB Case 1512 (11/22/05), pp 12-13 (erroneous advice regarding dues obligations of discharged member given by local president and financial secretary),

Shotwell v GM Department, PRB Case 1504 (11/29/05), p 17 (local president erroneously advised membership that appellant did not need approval of membership for EPC claim against UAW),

compare Franks v UAW, PRB Case 1520 (12/20/05) pp 13-14 (in context of confusion in 2001 on all sides about dues in newly organized unit, when member asked in 2003 whether she owed dues for 2001 and was told no, this disposes of issue whether she was ineligible to run in 2004 election due to dues delinquncy in 2001).

Courts and NLRB

The occasional court decisions and NLRB decisions I cite are available from a number of on-line sources.

See http://guide.biz.findlaw.com/casecode/supreme.html (supreme court decisions),

http://guide.lp.findlaw.com/10fedgov/judicial/appeals_courts.html (courts of appeals decisions),

http://www.nlrb.gov/ (NLRB decisions).

Academic writing

There is abundant academic writing about the Public Review Board.

Walter Reuther, The Public Review Board -- Why, What, How in A More Perfect Union, UAW Publication # 100P (1947),

Jack Steiber, Walter Oberer, Michael Harrington, An Analysis of the UAW Public Review Board, in Democracy and Public Review, Center for the Study of Democratic Institutions, Box 4068, Santa Barbara, CA (1960),

Jerome Brooks, Impartial Public Review of Internal Union Disputes: Experiment in Democratic Self Discipline, in Ohio State Law Journal, volume 22 # 1 (winter, 1961),

David Klein, UAW Public Review Board Report, in Rutgers Law Review, volume 18 # 2 (winter 1964),

David Klein, AFT's New Public Review Board: Lessons from Another Union, in Changing Education, Journal of the AFT, 716 N Rush Street, Chicago, IL, 60611,

David Klein, Enforcement of the Right to Fair Representation: Alternative Forums, in The Duty of Fair Representation, Jean McKelvey editor, ILR Publications Division, NY State School of Industrial and Labor Relations, Cornell University, Ithaca, NY, 14853 (1977),

David Klein, Exhaustion of Internal Union Remedies after Clayton and Bowen, in The Changing Law of Fair Representation, Jean McKelvey editor, ILR Publications Division, NY State School of Industrial and Labor Relations, Cornell University, Ithaca, NY, 14853,

Leonard Page and Dan Sherrick, The NLRB's Deferral Policy and Union Reform: A Union Perspective, 24 University of Michigan Journal of Law Reform 647 (1991),

Paul Alan Levy, Deferral To The Intra-Union Appellate Process: A Response, Public Citizen (undated),

Mike Parker, Appealing for Democracy, New Labor Forum (Fall 1998).

Of the foregoing I have read only the sixth one and the last one, and I am unclear on some citations. I would appreciate receiving copies from a member that has the other articles. Additionally, certain libraries contain files of closed PRB appeals. I have not reviewed them.

McCulloch papers, 1971-87, University of Virginia Law Library,

McKelvey files, 1957-1980, Kheel Center, Cornell University Library,

PRB files, 1957-1988, Reuther Archives, Wayne State University.

IV. Internal law / external law

Internal / external

There are two types of "law" to consider regarding the UAW: internal and external.

Internal law comprises the constitution, interpretations by the IEB and president, appellate decisions of the IEB, PRB, and CAC, administrative letters, past practices, and all the utterances and traditions which govern UAW organization, authority, administration, and conduct. As noted elsewhere, these are thought of as a contract among the union and all its members, enforceable through the appeal procedures under the UAW constitution described in this manual.

Davis v UAW, PRB Case 1441 (4/15/03), letter, Ron Gettelfinger to PRB, 1/16/03, pp 1-2 ("The structure and governance of the UAW itself ... are questions of private law.").

The font of all this is the constitution, the "supreme law" of the UAW. In most cases UAW locals, officers, and reps agree with internal laws, and even if they don't they try to follow them.

Article 3 ("This Constitution ... shall be the supreme law of [the UAW]."),

article 6 section 14 ("All members of the Local Union are also members of this International Union and subject to the orders, rulings and decisions of this International Union and the properly constituted authorities of the same.")

External law is the law of society, determined by acts of Congress and state legislatures, by decisions of courts, and by social practices. Regarding the UAW, the most important external laws are the NLRA, LMRA, LMRDA, and the various state and federal employment laws regarding discrimination, injuries, health, safety, unemployment, insurance, and the like.

Another important category of external law is the law of contracts between the UAW and employers. In disputes over the application or interpretation of these contracts, the decisionmaker can be a court. But more typically it is an arbitrator or umpire. Regardless, the decisionmaker is external to the UAW.

In one decision the PRB referred to this type of external law in a confusing way:

[T]he failure of GDLS to provide information about a pension benefit that it alone administers cannot be said to constitute a violation of the UAW/GDLS Agreement. Appellant Fried may have a remedy against GDLS for deliberately withholding information from him, as he alleges, but it would be a legal as opposed to contractual remedy.

Fried v General Dynamics Department, 10 PRB 184, 189 (1998).

I think what the PRB meant to say was that, if appellant Fried was entitled to a remedy, he could seek it from a judge or jury in court, but not from an arbitrator or umpire in the union-controlled grievance procedure.

This manual does not discuss external law much.

Talk of "law" and "legality" in internal UAW matters is appropriate when the reference is to internal law.

Peterson v UAW, 1 PRB 508, 510 (1969) ("legality" of ratification procedures),

Bolling v Local 306, 2 PRB 24, 29 (1973) ("legal conclusions to be drawn" by PRB),

Liddell v UAW, 2 PRB 92, 117 (1974) (dissent) ("litigated"),

Poszich v UAW, 2 PRB 125, 150 (1974) (dissent) ("litigated"),

Witt v Local 1111, 6 PRB 18, 23 (1990) (grievance procedures as "legalities"),

Ahmad v Region 3, 11 PRB 35, 38 (2000) ("no legal basis for pursuing his grievance"),

Novicenskie v Local 1069, 11 PRB 144, 149 (2001) ("That is all that Union law requires."),

Baxter v Local 659, 11 PRB 312, 316 (2001) ("legal status" of challenger),

Carthon v Local 2297, PRB Case 1603 (12/16/08), p 11 ("the law established by the UAW constitution").

But internal and external law sometimes conflict, as well they should. Thus the preamble of the UAW constitution asserts without qualification:

The structure of work established by management is designed to make of the workers an adjunct to the tool rather than its master. This, coupled with the authoritarian climate of the workplace, robs the worker of her/his dignity as an adult human being. This belies the democratic heritage we cherish as citizens in a society rooted in democratic values.

Preamble, paragraph 4.

Or as the PRB explained to a GM member:

The charter [among UAW trade unionists] bands together GM's hourly employees so that their collective strength can establish a modicum of bargaining parity to counter GM's might. On a larger scale, the collective strength of all UAW members by whomever employed, further enhances that bargaining power.

Hammersmith v GM Department, 6 PRB 439, 443 (1992),

see also Douglas v UAW, 8 PRB 331, 335, 343 (1994).

Again, as described elsewhere, PRB decisions have given different treatment to members accused of ratting, according to whether they ratted to management or the police.

To counter management, the UAW represents its members and institutionalizes militant collective action. The constitution goes so far that, when the union and its members are threatened in cases of great emergency, the UAW can call "a general strike within the industry."

Article 6 sections 15-16 (members delegate UAW and locals to act as exclusive bargaining representative and to appear for them in court in matters related to employee or membership status),

article 50 section 8 (general strike);

Pfeiffer v Local 556, 1 PRB 485, 491 (1968) (when union ceases to fulfill representation function its reason for existence also ceases),

Butina appealing Petty v Local 1264, 10 PRB 457, 460-61 (2000) (local bylaws give the shop committee no grieving, bargaining, or redistricting duties, and make no mention of bargaining, grievances, labor disputes, or strikes);

but see Davidson v Local 1282, CAC, session 1/81 (CAC declines an opinion on propriety of a possible future sympathy strike by a local unit).

External law provides for nothing of the sort. Employers and anti-union people help to enact and administer it. If the UAW called a general strike it would be enjoined on the spot.

But see Memos, Ellis Boal to Labor/Community/Religious Coalition in Support of the Striking Detroit Newspaper Workers:

Legal Notions Concerning Proposed General Strike (9/21/95),

Picket Line Conduct and its Effect on Reinstatement rights (11/21/95),

Government By Injunction (12/3/95),

Update On Sympathy Strikes (12/13/95).

True, some external laws provide for protection for employees. But uninterrupted production is the overriding national policy. Thus in the courts, rights "are protected not for their own sake but as an instrument of the national labor policy of minimizing industrial strife" by encouraging collective bargaining.

Emporium Capwell Co v WACO, 420 US 50, 62, 88 LRRM 2660, 2665 (1975).

In appeals, external law is only relevant if re-enacted by the union as internal law, or recognized by the union as applicable to internal law. For instance the PRB said in a 2000 decision that the election guide incorporates certain provisions of external law.

Warner v Local 599, 10 PRB 575, 579 (2000), reconsideration denied (6/14/00) (election guide incorporates federal election law that union funds must not be used to promote the candidacy of any individual);

see also article 37 section 9 (local shall not make its membership list available to anyone except for the performance of official union business or to satisfy the requirements of law);

compare King v Local 600, PRB Case 1464 (4/27/04), p 8 (president's office opposes appeal partially on basis that appellants' argument is contrary to public policy which encourages citizens to report wrongdoings to police).

Seeming to contradict all the foregoing, one section of the constitution's defining "Objects" article does appear to re-enact all laws including antiunion laws. I have not seen any appeal or any PRB, CAC, or IEB decision which refers or alludes to this section.

Article 2 section 4 ("[A UAW object is to] enforce existing laws [and] work for the repeal of those which are unjust to Labor....").

There are lots of laws and regulations and court decisions governing the subjects in this manual. Lawyers and manuals are around that can explain them. Members sometimes bypass articles 32 and 33 in favor of court litigation. Appeals where that occurred are noted elsewhere. If you want professional counsel I suggest it be someone or something that specializes in labor law, by which I mean the subset of employment law which deals with union-management relations.

In the UAW

If you are before the PRB and you cite a rule of external law, it usually answers that its job is only to enforce union rules.

Hess v Local 287, 1 PRB 375, 379-80 (1966) (right-to-work laws not considered),

Hopkins v Local 730, 1 PRB 469, 475 n 7 (1969), vacated 1 PRB 477 (1969) ("We recognize that this determination [that an agreement is of no force and effect] may have no effect on the legal obligations of the Union to the employer which are governed by a different set of legal principles."),

Bridgewood v Local 707, 1 PRB 533, 535 (1969) (US constitution not considered),

Badura v Local 93, 2 PRB 173, 183, 189 (1976) (PRB rejects "law" sense of dictionary definition of "fraud"),

Gonzales v Local 163, 2 PRB 386, 389 (1976) (first amendment is irrelevant),

Gally v UAW, 2 PRB 67, 69 (1973) (DOL settlement irrelevant to article 33 claim),

Lynch v Local 302, 2 PRB 787, 789 (1972) (PRB declines to endorse DOL election regulation),

EP complaint of Trapane, 3 PRB 15, 22 (1980) (PRB distinguishes between EPC and NLRA rights),

Adams v Local 148, 4 PRB 332, 337-38 (1985) (questioning whether PRB has authority to apply principles of NLRA when they contravene specifically a provision of the constitution),

EP complaint of Tucker v UAW, 5 PRB 228, 234, 366, 372 (1987) (PRB doesn't resolve tensions between constitution and law, decisions of IEB or PRB do not bind courts or department of labor, and conversely),

Kyles v UAW Ford Dept, 5 PRB 561, 565 (1988) (workers compensation claim not considered),

Spencer v Local 140, 8 PRB 210, 214 (1993) (damages for libel other than lost wages or benefits should be sought in the civil courts),

Loomis v Local 362, 8 PRB 322, 328 (1994) (affirmative action),

Gray v Local 6000, 9 PRB 31, 34 (1995) (state law mandating advance notice of closing of state mental health facility),

Salyers v Local 1681, 9 PRB 187, 191 (1996) (NLRA),

Rider v Local 1853, 9 PRB 429, 434 (1997) (disability law),

Sanders v UAW, 10 PRB 355, 358 n 4 (1999) (unemployment ruling does not assist appellant),

see also Pearson v UAW, 10 PRB 390, 404-06 (1999), reconsideration denied (10/28/99), pp 10-13, related case Pearson v Auto Workers, 1999 WL 547882, 161 LRRM 2893, 2896 (ED Mich, 1999) (court and PRB disagree about bylaw interpretation),

Holycross v Local 662, 10 PRB 523 (2000), (it may be that under state law the company could not terminate appellant for having filed a workers compensation petition, but she had signed an agreement she could be terminated at any time so the union had no basis on which to grieve),

Strohmeyer v GM Department, PRB Cases 1434 and 1439 (12/22/03), p 21 (EEO rights),

Davis v UAW, PRB Case 1441 (4/15/03), p 4 (age discrimination law),

Kidd v Local 1264, PRB Case 1467 (3/19/04), p 9 (UAW appellate procedures do not provide for discovery as in courts),

Avery v GM Department, PRB Case 1522 (2/16/06), pp 19-20 (despite UAW's acknowledgement that appellants were wronged, "[t]he damages appellants seek are actually in the nature of a tort claim against Delphi."),

Bays v GM Department, PRB Case 1538 (9/28/06), p 9 (substance tested positive for amphetamine even if it could not have been admitted in a criminal trial),

Esposito v UAW, PRB Case 1563 (4/17/07), p 7 ("Esposito's claims arising from sources other than the UAW Constitution and the Ethical Practices Codes are not before us."),

Henderson v GM Department, PRB Case 1568 (7/20/07), pp 15-16 (PRB declines to pass on the question whether the UAW's reduction of retiree benefits without their consent violated federal law),

Hanscom v Region 8, PRB Case 1590 (8/29/08), p 13 (PRB declines to pass on whether company's interference with appellant's website violates NLRA);

but see Pappas v Region 1A, PRB Case 1602 (10/28/08), pp 5, 6 n 15 (PRB construes Family Medical Leave Act in opposition to interpretation of appellant),

Collins v Region 1A, PRB Case 1607, pp 6-8 (11/25/08) (PRB cites principle in several court decisions as a factor in decision to deny appeal),

Bradley v Local 3520, PRB Case 1609 (2/23/09), reconsideration denied (4/22/09), pp 11-12, 26 n 69 ("Counsel for appellants has argued that [discharged member] Crisco should not have been required to pay dues on the money he earned outside the jurisdiction of the UAW because the Union could not represent him at his new place of employment. Such an argument might be used to defend a civil action to collect the dues, but it is clearly not the rule under the UAW Constitution.").

If you have a problem with the UAW, writing one of its lawyers is pointless. As a UAW attorney wrote to a local president who had sent him materials:

While I am flattered at being favored with this material, you must understand that the Legal Dept. is not responsible for interpretation of the UAW Constitution, does not handle appeals under Article 33, and is not responsible for advising Locals on proper administrative procedure.

In the UAW, we elect people to interpret, handle appeals, and advise on procedure.

Letter, Jay Whitman to Richard Debs, 11/14/88 (emphasis in original).

Accordingly in appeals I do not cite analogous external legal precedents, even those under the LMRDA. The EPC closely tracks the LMRDA, the PRB says; but the PRB is not bound to follow the LMRDA.

Davis, 1 PRB 214, 220 (1961) (LMRDA does not expand PRB's jurisdiction),

Foreman v Local 699, 4 PRB 123, 125-26 (1984) (PRB adopts court's LMRDA reasoning),

EP complaint of Tucker v UAW, 5 PRB 228, 234, 366, 372 (1987) (PRB and court decisions not binding on each other, member may pursue both court and article 33 remedies simultaneously),

Brandt v UAW, 5 PRB 337, 348 n 15 (1988) (PRB constitutional decision expresses no view on parallel LMRDA proceeding in court);

see also Hopkins v Local 730, 1 PRB 469, 475 n 8 (1969), vacated 1 PRB 477 (1969) (factual setting of court precedent cited for comparison),

Hughey v Local 425 2 PRB 401, 404 (1976) (language of election guide and LMRDA compared),

EP complaint of Tucker, 8 PRB 16 n 6, 17 n 8 (1992) (arguments under the constitution and LMRDA compared).

Similarly, though the PRB says its standard for grievance appeals mirrors the court-imposed duty of fair representation, I do not cite analogous NLRA precedents. Most of the time it doesn't either.

So in any appeal if one side is rooted in union principle and the other opposes it, in theory and other things being equal the principled side prevails. The theory doesn't always work. But it has a better chance of working within the union than without, and this is why you are better off in a union appeal than in a court.

Be careful if you refer to "law" in an appeal to make sure it is understood which type of law you have in mind. A side-benefit is this: UAW members are not expected to have training in legal draftsmanship. The arguments made and the decision rendered are usually (not always) free of intimidating jargon.

Local 257 v Kellog, 1 PRB 309, 309-10, 313 (1965) ("[A] lay tribunal cannot be held to the formal procedure which is followed in a court."),

Marshall v Local 1364, 1 PRB 522, 530 (1969) (dissent) ("stewards and officers are ... laymen rather than professional lawyers"),

Bridgewood v Local 707, 1 PRB 533, 535 (1969) ("justiciable"),

Garrett, 1 PRB 596, 601 (1970) ("judicial notice"),

Battle v UAW, 1 PRB 606, 612 (1970) ("judicial notice"),

Balicki v Local 47, 2 PRB 931, 932-33 (1981) ("justiciable"),

Grigsby v Local 110, 5 PRB 412, 415 (1987) ("[F]ew UAW members have had special training in the subtleties of legal draftsmanship."),

Braman v UAW, 5 PRB 469, 471 (1988) ("In his effort to elevate what he perceives as technical requirements of the Constitution over a common sense application of its requirements, Braman has totally lost sight of the purpose of the Constitution which is simply to require that members pay their dues each month."),

Downs v Local 2250, 6 PRB 193, 199 (1991) ("We recognize that the UAW's internal appeals procedure is less structured than a civil legal proceeding and that rigid procedural or evidentiary rules would be futile and self-defeating if applied to the Union's system of internal remedies.");

Downs v IEB, 8 PRB 548, 552, 554 (1995) ("justiciable"),

Davis v UAW, PRB Case 1441 (4/15/03), letter, Ron Gettelfinger to PRB, 1/16/03, pp 21-22 ("precatory").

(I confess to using jargon once myself.)

Thompson v GM Department, 9 PRB 64, 67 (1996) ("ipse dixit").

Accordingly article 33 concludes asserting your obligation to fully exhaust constitutional remedies and appeals before seeking redress in a civil court or government agency. As noted elsewhere the UAW has required this since its founding.

There is a wrinkle in the above analysis: My pocket guide specifies violations of laws, regulations, and NLRB rulings as one type of valid grievance. But that concerns the grievance procedure, not internal law. It is discussed more fully elsewhere.

A more important problem, discussed more fully elsewhere, is the PRB's 2001 Colley decision. It denied a damages claim for untimeliness. Colley differentiated similar appeals in which timeliness was waived. The distinction was based on exhaustion principles; the exhaustion principles were those of external law not the internal ones noted just above.

Before Colley PRB decisions did occasionally cite external law. But they seemed to reason only by analogy.

Colley v Local 235, 11 PRB 235, 240 (2001);

Szymczak v Dewyea, 1 PRB 35, 40, 43 (1958) (invoking court precedent on exhaustion of remedies prior to legal action to determine result in appeal before PRB),

Egres, 1 PRB 50, 60-62 (1959) (applying external legal principles as one basis for decision that local president's resignation was effective),

Wright v Local 501, 1 PRB 78, 82-83 (1959) (NLRA precedent relied on to explain the character of superseniority),

Telakowicz v Local 425, 1 PRB 148, 151 (1960) (analogy of union elections to NLRA elections),

Hess v Local 287, 1 PRB 375, 378-79 (1966) (LMRA relied on to construe predecessor to article 50 section 4),

Pfeiffer v Local 556, 1 PRB 485, 491 (1968) (citing external law that UAW is obligated to represent all employees, not just all members),

Tencza, 1 PRB 497, 500 (1968) ("[a]ccepted principles of statutory construction"),

Sneath v Local 1309, 5 PRB 299, 302-03 (1988) (citing NLRA principles on preferred seniority to decide grievance appeal),

Robinson v UAW, 5 PRB 439, 444 (1988) (external legal decision cited in grievance appeal),

McClure v Local 652, 6 PRB 354, 359 (1992) (adopting courts' approach to proving race discrimination circumstantially),

Konarske v Local 600, 6 PRB 452, 462 (1992) (external legal precedent relied on in grievance appeal).

Though appellate union bodies are not bound to apply civil law, they do sometimes defer to fact-findings of civil tribunals, as noted elsewhere.

V. What can be appealed

An appeal is an attempt to change some course of action or inaction being undertaken by a union body, including any UAW subordinate body or administrative arm. The most common appeals are those to undo the disposition of a grievance. Close behind are protests of elections and appeals about charges.

Note that an "appeal" concerns a member's protest of an action or inaction on the part of the union. An appeal is not directed against action or inaction of a company. This is so, even though the underlying issue may be a discharge or some other unfair management action. To protest action by the company, file a grievance.

Davis v UAW, 11 PRB 348, 350 (2001) ("The Public Review Board has no jurisdiction over Ford Motor Company, and we cannot direct it to do anything.").

Various sections of the constitution provide for different appeals. All except credential challenges at meetings and certain interpretations by the president and by the IEB come under article 33. The decisions noted here touch tangentially on these exceptions:

Article 8 section 17 (convention credentials),

article 13 section 8 (presidential interpretations);

Conroy v UAW, 1 PRB 493, 494-96 (1968) (convention credentials, delegate election),

Battle v UAW, 1 PRB 606 (1970) (convention credentials, director election),

Bolling v Local 306, 2 PRB 24, 29-30 1973) (convention credentials, convention expenses),

Kerik v UAW Ford Sub-Council 3, 2 PRB 772, 775-76 (1980) (sub-council credentials),

Gibbs v Local 551, 3 PRB 210, 215 (1982) (convention credentials, delegate election),

Taylor appealing Russell v Local 25, 5 PRB 680, 688-91 (1989) (presidential interpretation, voting rights of members of defunct unit of amalgamated local),

Thompson v GM Department, 9 PRB 64, 73-74, 78 n 17 (1996) (presidential interpretation, right to ratify agreement with purchaser of portion of GM operation).

As discussed elsewhere, you must have "standing" to start an appeal, though the constitution does not define it.

Your issue must also be "justiciable." This is an ill-defined concept, best explained by giving examples.

Bridgewood v Local 707, 1 PRB 533, 535 (1969) ("The application of this constitutional provision [former article 10 section 8 which barred members or followers of political organizations which owe allegiance to governments other than the US or Canada from holding UAW office] is, however, a justiciable matter and, under the provisions of the Constitution, subject to the reviewing authority of this Board."),

Balicki v Local 47, 2 PRB 931, 932-36 (1981) (PRB considers the justiciability of appellant's claim that a local fund was used for improper purposes, before proceeding to the merits),

Downs v UAW, 8 PRB 548, 553 (1995) ("For political issues, there are political processes [, CAP Councils, which] advise and counsel the International Executive Board on programs and policies.... CAP Councils provide the mechanism for the formation of UAW political policy. Those who disagree with the political decisions of the IEB have this political process, as opposed to Article 33 appeals, to seek to modify or change these decisions.... The appeal is dismissed by reason of its failure to state a justiciable issue.").

Take care not to confuse an appeal from a charge under article 31, which has different procedures and time limits. The difference is this: An appeal asks the union to remedy some action or inaction it did badly. A charge seeks to punish a member or officer by a reprimand, removal from office, or suspension or expulsion from membership.

However after trial or other action of a local union concerning a charge, it can be appealed to the IEB, PRB, or CAC through article 33. In other words a charge against a member can become an appeal when somebody doesn't like what the union did with the charge, and wants to take it to a higher level.

Following are some of the areas in which appeals can be brought. The discussions here are of varying thoroughness. I hope soon to fill them all out.

Administratorships

An administratorship may be imposed where necessary to:

• prevent or correct corruption or financial malpractice;
• assure the performance of collective bargaining agreements or other duties as a bargaining representative,
• restore democratic procedures within a chartered subordinate body, or
• otherwise assure carrying out the legitimate objectives of the UAW by the subordinate body

In a 2008 decision the PRB set out standards of review of administratorship appeals. An administratorship is only to be employed for very serious deviations from the operation of a local, which cannot otherwise be addressed. It must be for one of the four purposes above. The UAW cannot impose one simply to save money or achieve some other kind of efficiency. Once legitimate grounds are established, the only restrictions on the IEB are principles of fairness and due process under the constitution and EPC.

In the appeal before it, there was no evidence of corruption or financial malpractice. There was no outright defiance of a specific directive from the UAW. There was no situation that could not be corrected without an administratorship. But the authority of the LEB in a local is not absolute. Members can file appeals and protest elections. In a decision from the same local three months earlier, the IEB and PRB were troubled by the election committee's dismissive tretment of legitimate concerns. Now the LEB appears to be continung an undemocratic pattern. Recommendations regarding the schedule and rules for a rerun election were ignored at a meeting. Accordingly, the administratorship was approved.

Turing to another issue, the question whether the administrator properly removed the local president, the PEB chose not pass on it because the same issue was pending in another appeal soon to be decided.

Grima v Region 1A, PRB Case 1606 (11/24/08), p 33;

compare Grima v UAW, PRB Case 1589 (8/25/08), pp 8, 25-26, 28 (election overturned partially because election committee allowed challenged voters to vote unchallenged ballots, and refused to place appellants' timely and ultimately successful protests on joint council meeting agenda).

After a hearing and by a 2/3 vote the IEB can suspend officers or take over supervision of a subordinate body or unit until its affairs have been properly adjusted. In such event one IEB member becomes an administrator with full authority of all functions in the local. He or she can suspend any or all officers and take over their functions either as directed by the IEB or in his or her own discretion. Where officers are suspended a new election is to take place within 60 to 180 days of the order returning the body to autonomy.

Constitutional provisions and PRB administratorship decisions follow.

Article 12 section 3 (administratorship procedures),

article 40 section 10 (suspension of local union if local officers fail to report membership and per capita taxes to UAW);

Turner v UAW, 1 PRB 12, 18-20 (1958) (one day's notice of IEB hearing adequate in light of lack of prejudice and need for speedy action, administratorship justified because of LEB conduct rebellious toward convention),

Local 469, 1 PRB 27, 31 (1958) (threat to impose administratorship because of local's failure to comply with IEB decision pending appeal to PRB),

Sims v UAW, 1 PRB 200, 204 (1961) (in administratorship authority of administrator is temporarily substituted for that of the general membership to assure carrying out UAW object of uniting members regardless of race),

Sexton v UAW, 1 PRB 729, 730-31 (1972) (complaints of financial abuses),

Local 1200 v UAW, 3 PRB 419 (1982) (no standards for review of administratorship established by PRB in previous decisions, nonperformance of collective bargaining agreement supported administratorship),

Thompson v UAW, 4 PRB 23 (1983) (notice to local of administratorship is notice to individual members),

Jenkins v UAW, 4 PRB 302 (1984) (refusal of local president to comply with specific directives of membership authorized IEB to impose administratorship),

Belue v UAW, 5 PRB 399 (1987) (imminence of expensive local election and then plant closing not sufficient to justify administratorship in light of plant's decision after IEB decision to postpone closing),

Hale v Local 326, 9 PRB 35, 45 (1995)("friendly" administrator's power to remove officers includes power to reduce their wages),

Libby v Local 6000, 9 PRB 549, 554 n 4 (1998) (article 40 section 10 probably invoked by IEB through article 12 section 3),

Halstead v IEB, 10 PRB 61, 67, 68 (1998) (local joint membership council is highest authority in administered statewide local, 60 days dates from date of order returning body to autonomy),

Halstead v IEB, 10 PRB 76, 79 (1998) ("[The administrator] could work with the Local Executive Board when he chose to do so, or could act in its stead."),

Local 2036, v UAW, 11 PRB 135, 143 (2001) (administratorship permissible as last-ditch effort to bargain contract during lockout),

Baker v IEB, 11 PRB 439, 443-45 (2002) (appellants abandoned challenge to administratorship, and failure to conduct election in newly formed local not timely raised; but PRB comments anyway on improper administratorship procedures),

Turner v IEB, PRB Case 1490 (9/2/05), pp 16-17 (though proposed local bylaw revision which would have paid full-time newspaper editor as union employee did not conflict with constitution IEB properly disapproved it because of financial problems revealed in recent audit).

To accomplish the purpose of the administratorship an administrator may ignore local bylaws.

Hale v Local 326, 9 PRB 35, 37, 45 (1995) (because administrator could have removed officers, he had authority to reduce their salaries below that set by bylaw).

Agency

From time to time the PRB has held that a person or entity was the agent for another.

Article 6 section 15 (UAW),

article 6 section 16 (UAW);

Local 262 Shop Committee v Local 262, 1 PRB 247, 249 (1961) (local shop committee),

O'Hara v Local 36, 1 PRB 391, 394 (1966) (election committee's CPA),

Peterson v UAW, 1 PRB 508, 512 (1969) (intra-corporation council),

Liddell v UAW, 2 PRB 92, 112 (1974) (dissent) (UAW),

Poszich v UAW, 2 PRB 125, 145 (1974) (dissent) (UAW)

James v Region 5, 3 PRB 385, 389 (1982) (leadman),

Warren v UAW, 5 PRB 430, 434, 435-36 (1988) (narc),

Jodlowsky v UAW, 5 PRB 463, 467 (1988) (insurance company),

Houghtlen appealing Noble v Local 549, 6 PRB 107, 112-14 (1991) (local civil rights chair),

Hammersmith v GM Department, 6 PRB 439, 443 (1992) (GM department),

Ponce v Local 492, 8 PRB 449, 453 (1994) (convention),

Hale v Local 326, 9 PRB 35, 42 (1995) (administrator),

Feldman v Local 900, 9 PRB 332, 343 n 19 (1997) (officer of local),

Vogen v Local 900 I, 9 PRB 614, 622 (1998), later decision 9 PRB 624 (2000) reconsideration denied (7/19/00) (UAW rank-and-filer placed by employer in labor relations office with duty to respond to employee inquiries),

Butina appealing Petty v Local 1264, 10 PRB 457, 462 (2000) (presidential administrative assistant),

Zavadil v Ford Department, PRB Case 1407 (3/19/03), pp 2, 9 (management acting superintendent),

King v Local 600, PRB Case 1464 (4/27/04), p 3 n 10 (member who at suggestion of local president presented evidence to police to see if they could stop other member from sending letters to local officials thought to be harassing or threatening; PRB did not decide agency issue),

Turner v IEB, PRB Case 1490 (9/2/05), pp 11, 14 (presidential administrative assistant).

Appealability, mootness, parties, standing

This section discusses what types of decision are appealable. Elsewhere is a chart summarizing limitations on certain kinds of appeal. The procedures for starting an appeal are discussed elsewhere.

You may appeal any action, decision, or penalty of the UAW or any of its subordinate bodies or administrative arms, or of a local union or any of its units, committees, officers, committeepersons, or stewards. A failure or refusal to act can also be appealed where it results in an injury.

Article 33 section 1;

Siren v UAW, 1 PRB 160, 163 (1960) (IEB recommendation to Canadian locals that appellant be barred from holding office, even if recommendation is mere opinion),

Gally v UAW, 2 PRB 67, 67-69 (1973) (PRB decides appellants have right to have CAC review validity of selection of CAP council delegates, and hence validity of CAP council proceedings),

Yettaw v Local 599 I, 8 PRB 28 (1993) (letter of UAW officers to locals allowing locals to dispense with their bylaws and pay delegates' travel allowances higher than actual travel fare may be appealed),

Eastman v Local 1292 I, 8 PRB 49 (1993), second decision 8 PRB 31 (1995) (letter of UAW officers to locals allowing locals to dispense with their bylaws and pay delegates' travel allowances higher than actual travel fare may be appealed, as also may be the local's dispensation though it passed by less than a 2/3 vote),

Baxter v Local 659, 10 PRB 337, 341 n 2 (1999) (ratification vote is an appealable action or decision),

Turner v IEB, PRB Case 1490 (9/2/05), pp 4, 15 (letter of president saying full-time local union editor would not be a necessary expense was merely a personal correspondence without constitutional significance).

If an officer or rep at any level tells you a particular issue is unappealable, you can appeal that.

Article 33 section 1;

Willis v UAW, PRB Cases 1507, 1510 (5/18/05) pp 12-13 (claimed member whose appeal was barred by local president on ground that he was not a member was entitled to appeal the issue whether he was a member).

An appeal can be rejected if it is "moot." It is moot if the relief sought has already been attained, has become unattainable due to the passage of time, or is otherwise unattainable. Mootness is discussed elsewhere.

The parties to an appeal are the members or UAW entities who are either appealing or whose actions are being appealed. Their names are shown in the case caption, though if there is more than one on one side or the other often only the first is listed.

Usually it is only the parties that can win or lose an appeal. But in one remarkable decision the PRB held a local may owe compensation to the appellant even though it was not a party. The appellant had asserted the local was responsible in her appeals to the membership, the IEB, and the PRB. But the IEB and PRB did not list it as a party, and it declined to offer evidence or make argument at some of the hearings including the last one before the PRB which resulted in the holding against it.

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), record pp 95, 102, 139, 148,

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05), pp 14-18, 23, record p 121.

One thing you cannot appeal is an unjust union action where you as a party lack "standing." In other words, an appeal may be lost not because of its merits but because of who filed it. "Standing" is a notion that in some situations may have an intuitive ring to it. The problem is that except for the several references to "good standing" that every paid-up member has (unless suspended by a trial committee), the constitution does not define it or even mention it.

The reason -- I believe -- that there is no mention or definition is that traditionally in the labor movement an injury to one is an injury to all. Unbecoming conduct or unjust union action offends the whole union, not just the members immediately affected. To extend the PRB's analogy between the union trial procedure and the criminal law, a rape or a murder is prosecuted by the state not the victim or his or her family.

The most bizarre "standing" ruling was a presidential decision that a member who is in good standing of one local lacks standing to charge a member of a second local under article 31. The charge claimed that appellee forged a protest and interfered with the first local's delegate election.

"Good" standing is all that article 31 speaks of. The PRB agreed there is no support for the president's ruling either in the text of the constitution or in the convention debates leading to its adoption.

But see article 31 section 20 (providing the IEB may prefer charges against members in cases of extreme emergency or conspiracy).

It also understood that the ruling meant that members of one UAW local can whipsaw, cross the picket line, or interfere in the election of another UAW local without fear of union penalty.

But it denied the appeal saying it wanted to be sensitive to the spirit of article 13 section 8. That section implies that convention delegates prefer in the main that questions of constitutional interpretation be resolved by it. One PRB member dissented.

Article 13 section 8,

article 31 section 1;

Douglas v UAW, 8 PRB 331, 341-48 (1994).

The appeal arose out of Local 594. At the next convention the local submitted a resolution to amend the constitution to allow members in one local to charge members in another local. The resolution went nowhere.

Constitution committee resolution # 697, 31st constitutional convention (1995).

In another decision the PRB said the appellant lacked standing, and then it dismissed the appeal for lack of PRB jurisdiction. The dismissal was without prejudice to the convention taking up the appeal again. At the time the predecessor to article 33 section 3(f) Determining jurisdiction -- similar to the 2006 version -- said "[an] appellant may not again raise any issue which the [PRB] negated in its decision dismissing for lack of jurisdiction." Yet the decision included a footnote saying the PRB did not understand its "standing" holding to bind the convention.

Fisher Bargaining Committee v UAW, 1 PRB 588, 590 n 3, 591 n 4 (1970).

Sometimes standing is based on notions of local autonomy.

In some decisions it says there is standing,

Article 32 section 5(d) (IEB may submit any EPC appeal to the PRB);

Egres, 1 PRB 50, 57 (1959) (referral to PRB by IEB),

Local 453 v Hawkins, 1 PRB 234, 236 (1961) (new president has standing to withdraw appeal brought by predecessor in official capacity),

Tanzella v Local 738, 2 PRB 232, 236 (1975) (under pre-1980 constitution any member could appeal disposition of any grievance whereby he or she "feels" aggrieved, even if the disposition had no effect on appellant's contractual rights),

Laughery v Local 72, 2 PRB 724, 724 n 1 (1980), reconsidered 2 PRB 724 (1980) (non-party in local trial permitted to appeal procedure leading to verdict of acquittal);

Carstensen v Local 780, 4 PRB 238, 240 (1984) (non-candidate may protest election);

Bolen v Local 848, PRB Case 1402 (1/3/03) (member's standing to charge LEB for improperly removing other member from LEB not questioned).

and in others it says there isn't. I don't always see the difference.

Articles 6, 16, 31, and 38;

Local 262 Shop Committee v Local 262, 1 PRB 247, 249 (1961) (local shop committee is neither a UAW subordinate body nor a "member" with right of appeal, though members of it have that right),

Peterson v UAW, 1 PRB 508, 511 (1969) (no standing to appeal issue on which there is no actual controversy because appellant seeks no relief),

Fisher Bargaining Committee v UAW, 1 PRB 588, 591 (local shop committee may not appeal),

Tanzella v Local 738, 2 PRB 317, 319 (1976) (in rejecting charge on ground that no improper motivation was claimed, PRB notes candidate's challenger had no standing to contest election),

Kerik v UAW Ford Sub-Council 3, 2 PRB 772, 775-76 (1980) (member of one local has no standing before the PRB to challenge credentials of another local's delegates to a sub-council for otherwise, incongruously, he could challenge the election of its president or any of its other officers or its delegates to national conventions; but he would have had standing to challenge the credentials before the credentials committee of the sub-council),

Local 72 v UAW, 3 PRB 440, 442 (1983) (local has no standing to challenge ratification procedures in another local),

Scarlett v UAW, 5 PRB 409, 411 (1987) (no standing to appeal non-charge to other member of overtime hours where appellant was not injured by non-charge),

McGinnis v Local 2123, 8 PRB 26, 27 (1993) (member had no standing to charge another member claiming an assault on a third member),

Local 148 appealing Powell v Local 148, 8 PRB 129, 134 (1994) (motion to withdraw appeal denied partly because appellant filed appeal in capacity as local president, a position he did not hold at the time he attempted his withdrawal),

Larkin v Region 5, PRB Case 1497 (3/17/05), p 6 (under article 13 section 16 only secretary-treasurer has authority to challenge the use of the UAW's name or logo),

Grima v UAW, PRB Case 1621 (9/16/09), pp 14-17 (candidates, one of whom transferred from his home local to a different plant and local and the other of whom accepted a voluntary severance package from his employer, lack standing to protest an assertedly unfair election held when they were employed in the home local).

An interesting 2007 decision rejected an appeal because of who filed it, without mentioning the "standing" rule. The appeal challenged the ratification of a 2005 amendment to the Ford national agreement which contained substantial cutbacks in retiree health care, as well as cutbacks in active members' benefits. Nationally, the amendment passed the active membership by a margin of just 50.2%. The UAW had ordered the vote to proceed at the Local 1250 hall even though the local's plants were on a temporary layoff that week.

Active members can vote in ratifications; the CAC has held that retirees cannot. The appellants were retiree Dennis Lapso in Local 1250, and 21 retirees and active members from other Ford locals. Brother Lapso appeared at a local meeting and argued that 2000 active local members were disenfranchised because they were on layoff. The members rejected the appeal. Appellants went to the IEB and the PRB.

The local had printed over 3500 copies of the benefit highlights before the vote. The exact numbers of eligible local voters and votes are not in the record. The union did not dispute Lapso's estimates that 1100 voted and if a rerun were ordered the ballot count could increase by over 1000.

Lapso v Local 1250, PRB Case 1550 (2/20/07), record pp 88, 164.

The UAW did not contest appellants' assertions that the procedure violated technical requirements of article 19 section 3 in that voting began three hours before information meetings which explain the contents of the amendment, that 2000 active voting local members were away from the plant and the local hall the week of the ratification, that the amendment passed by only 95 votes nationally, that at least 95 of the laid-off members who did not vote would have voted under reasonable conditions, that these 95 votes might have affected the outcome nationally, that article 19 section 3 as well as the traditions of the UAW and other unions emphasize the importance of maximization of membership participation, that maximization of participation could have been achieved by delaying the vote in this local a short period until it was back to full strength, that the issue of maximization should have been referred to the director of Local 1250's region because article 19 section 3 gives directors authority on the issue, and there was no bargaining-related reason and no reason grounded in UAW past practice why a delay wouldn't have been appropriate in this instance.

Compare Quesada v Local 2244, 11 PRB 386, 391 (2002) (under election guide the union has a responsibility to maximize voter participation in officer elections; by scheduling an interim election at the local hall for only four hours on a Sunday the election committee had to know the turnout would be very light; though the low turnout might be explained by the fact it was an interim election involving only a single LEB at-large position, by waiting a day it is virtually certain there would have been a substantially larger turnout, ensuring that the candidate elected would more accurately reflect the preferences of the electorate).

The union answered simply that no active member of Local 1250 joined the appeal, and for this reason appellants had not identified a violation of the constitution. The PRB agreed. The opinion concluded:

The contents of the tentative agreement and its ratification by a very narrow margin were well publicized. The fact that local 1250's approval of the amendment by a margin of 63 percent [in the local] tipped the balance in favor of its approval nationally would have been apparent to the members of Local 1250. Yet, the active membership did not challenge the results of the vote or raise questions about the procedures for ratificiton followed at Local 1250. Appellant Lapso raised his issues before the membership and the membership rejected his appeal. We do find it significant that no active member of UAW Local 1250 joined in this appeal. If a substantial number of active members opposed to ratification of the amendment believed that their voices had been silenced by the circumstances at Local Union 1250, some of them would have objected. The fact that no active member of Local 1250 joined in this appeal supports the conclusion that the membership accepted the precess and the result. There has been no showing in this record that Article 19, §3, of the International Constitution has been violated.

The decision of the IEB is affirmed.

Lapso v Local 1250, PRB Case 1550 (2/20/07), pp 11-12.

The opinion noted but did not attempt to rebut appellants' argument that they did have standing, in that the decision to proceed with the vote in Local 1250 was made at the UAW level not the local level, and it affected the interests of active and retiree members in every Ford local.

Compare Local 72 v UAW, 3 PRB 440, 442 (1983) (local has no standing to challenge ratification procedures established by another local).

By upholding the ratification even though voting began three hours before the information meeting, the holding also means that by voting down the appeal, the membership could waive the constitutional requirement, discussed elsewhere, that the voting be "at" the meeting. The constitution does not permit membership waiver of its requirements.

Compare Smith, 1 PRB 44, 49 (1958) ("As to the question of waiver, we do not think the appellants had the power, by waiver or otherwise, to give to the two-man committee authority and jurisdiction not so granted by the Constitution.").

Even apart from ratification of an improper waiver, the opinion in effect restated and rationalized the already-obscure "standing" rule, and thereby dodged a serious and material issue affecting tens of thousands of UAW-represented Ford employees. In this sense, the reasoning didn't rise to the level of being wrong.

Appointed reps, jointness

Article 33 section 2(b) allows appeals by unjustly-removed UAW-appointed reps only up to the IEB. The same section allows appeals by unjustly-removed locally-appointed reps only as far as the local membership. Still, the PRB has entertained many appeals over the years addressing appointed reps' political rights under the EPC at the UAW and local level.

The following discussion treats UAW-appointed and locally-appointed reps together, but for convenience I list here the decisions concerning local appointments.

Webster v Local 51, 2 PRB 856, 865 (1981) (since LEB with membership approval has power to appoint, local president may not unappoint),

Mejia v Local 365, 5 PRB 454, 459 (1988) (preponderance burden to show speech activities motivated removal of locally appointed rep),

Luksch v Local 686, 5 PRB 590, 596 (1988) (distinguishing between policy-making and policy-executing; removal of local appointee because she supported opponent in election would violate EPC),

LaPresta v Local 1112, 8 PRB 266, 272 (1994) (recording secretary should have placed appellant's EPC claim on agenda of membership meeting),

Riley v Local 1853, 11 PRB 93, 100 (2000) (Saturn AMA appointed by previous union administration),

Collis v IEB, PRB Case 1517 (10/26/05), pp 5-6 ("Nothing in the Constitution requires that [selections of members to attend conferences] be made democratically or impartially.").

The 1994 Ward decision summarized the previous cases and specified rules:

• A special purpose rep serves at the will of the appointing authority, and may be terminated at any time for any reason, except a prohibited reason.
• The authority appointing a special purpose rep may condition the appointment on the appointee's acceptance of limitations on his or her political activities, so long as these limitations are stated fully and unambiguously. A dismissal occasioned by a violation of such limitations does not violate the EPC.
• The appointed rep must be willing at all times to implement the policies of the appointing authority, or be subject to dismissal.
• The appointing authority may not, however, retaliate against an appointed rep, by removing him or her from the job, by reason of the rep's exercise of non-restricted political rights protected by the EPC.

In Ward, there was evidence the real reason for appellants' removal was their support for a regional candidate at the convention. The GM department director had issued a letter limiting local political activities, but appellants' regional political work did not violate it. The PRB reinstated the appellants. They did not request backpay.

Ward v GM Department, 8 PRB 228 (1994).

A wrinkle in Ward was the noted letter of the GM department. Other UAW national departments have circulated similar letters over the years.

GM Department director Steve Yokich, memorandum (10/4/89);

see also Chrysler Department director Jack Laskowski, letter (8/20/96),

Chrysler Department director Nate Gooden, letter (11/8/99),

Ford Department director Ron Gettelfinger, memorandum (8/19/98),

Ford Department director Gerald Bantom, memorandum (6/02).

The letters and practices vary from department to department. For instance until 2003, the Chrysler Department had a settled practice that, when it appointed a member to serve in its national training center ("NTC") and the member had previously been serving as a UAW appointee in a local, the member would return to his or her appointment in the local should the appointment to the NTC not become permanent. Additionally, unlike the other departments, the Chrysler Department letters provide:

It is intended that Internationally-appointed Local Union Representatives will become "experts" in their respective field(s) and a valued asset to the local union. Therefore, it is not intended that changes in local union administration will also result in changes of Internationally-Appointed Local Union representatives.

Chrysler Department director Jack Laskowski, letter (8/20/96), p 3,

Chrysler Department director Nate Gooden, letter (11/8/99), p 3;

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), pp 2, 5, 9, 11 (past practice in DaimlerChrysler Department),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05), pp 17, 22 (past practice in DaimlerChrysler Department).

Ward's second requirement (clear enunciation of limitations on political activities in the letters) was tested in a subsequent appeal from the Ford Department. The rep, Al Badalamento, had distributed leaflets which attacked the local president for receiving both a salary and a pension. An election was imminent but at the time the president had decided not to run. Also at the time the membership was considering a bylaw amendment to abolish the president's practice. In modified form the amendment later passed.

The Ford Department's letter prohibited reps from seeking or holding elected local positions except as delegates to conventions or conferences. Reps were prohibited from engaging in local union politics or elections. They had to support all official policies of the UAW and the local, to attend local meetings, and to participate in other union functions.

Clarity of the letter was something else. The IEB and the president's office at various times in the appeal interpreted it to mean:

• "Any member can, or course, stand up in a meeting and debate an issue. For an appointed special purpose representative, this right stops when the Local Union leadership takes a position and it becomes the policy of the Local Union administration. That is the principle. Even in response to a question put to him at a membership meeting, he should not speak against the policies and programs of the local leadership. [In this appeal], although there was no public position on the [proposed bylaw amendment], the President had taken a position implicitly by his electing to receive both his pension and his salary."
• "As an appointed representative appellant retained the right to support candidates for local union offices and even to make that support known."
• "The decision of the IEB does not distinguish written from oral communications..."
• "Later, in responding to [appellant Al] Badalamento's appeal, [the IEB] drew a distinction between comments expressed orally at a union meeting and written materials distributed among the membership."

The IEB held no hearing, so at a PRB hearing Brother Badalamento produced testimony that the appointed reps had a political meeting where candidates for local office were discussed. He also produced a copy of the local newspaper naming UAW-appointed reps who were serving in local elected positions.

A PRB majority first noted that the Ford Department's policy letter limiting appointed reps' speech was unclear, and the UAW defense of it inconsistent.

It nevertheless upheld removal because the Ford Department had discretion to find the leaflet political. The local president later became a candidate for re-election, the majority found, and the leaflet contributed to his defeat. The majority recommended that the Ford department clarify its policy on political activities of appointed reps. It rejected a dissenting PRB member's argument that appointed reps should remain free to disseminate their views on policy matters, as distinguished from political matters, and the PRB should remand the appeal so the IEB could formulate a truly ethical code of conduct and do fact-finding.

Badalamento v Ford Department, 11 PRB 511, 511, 515-16, 517, 518 (2002), record p 18,

The Beacon, Official Publication of UAW Local 228, vol 34 issue 3 (fall, 2002), pp 6, 20 (Bill Tondreau listed as nationally-appointed employee resource coordinator and as LEB member; Mike Wagner listed as nationally-appointed employee resource coordinator and as local trustee),

Kidd v Local 1264, PRB Case 1467 (3/19/04), p 8 (PRB holds it will intervene in the removal of an appointee only when it concludes that a UAW department has used its discretion unreasonably or for an impermissible purpose).

Several other PRB decisions also discuss the second rule of Ward.

Robertson v UAW, 1 PRB 632 (1971) (under EPC UAW employee-members may appeal decisions made by UAW as employer; union may condition appointment on curtailment of political activities),

EP complaint of Wilson, 2 PRB 869 (1980), 3 PRB 1 (1980) (UAW-appointed contractual rep may be required to surrender political rights as condition of appointment),

Kelley v Local 400, 5 PRB 503, 505 (1988) (UAW rep must resign to seek local office),

Brandt v UAW, 5 PRB 330 (1987), reconsideration denied 5 PRB 337, 343, 347 (1988) (rule upheld requiring UAW staff rep to take leave on running for international office and reassignment if unsuccessful; running against own boss may be dereliction of duty),

Adams v Ford Department, 6 PRB 444 (1992) (subject to EPC UAW appointee serves at will of appointer),

McDonaugh v Local 1183, 10 PRB 359, 362-65 (1999) (removal of UAW rep for campaigning in local election),

compare Austin v GM Department, 11 PRB 82, 91 (2001) (appellant's attendance at political caucus meeting may have violated condition of employment of UAW-appointed rep),

Carver v Local 163, PRB Case 1435 (9/25/03), pp 8-10 (local election overturned because UAW-appointed reps campaigned),

Crable v Local 148, PRB Case 1452 (12/23/03), p 11 (it is up to UAW department, not local union, to decide whether UAW rep violated policy against participation in local politics),

Local 276 v IEB, PRB Case 1631 (9/15/09), p 18 (local could not adopt a rule requiring internationally-appointed reps to resign their positions before accepting nomnination to run for local office because the appointment and removal of such reps is solely within the discretion of the vice president of the national GM department; locally-appointed reps on the other hand could be forced to resign in order to run for office but only if the requirement were stated unambiguously in the local bylaws and posted nomination notices).

The Ward principles were applied to uphold removal of locally-appointed reps at a Saturn plant though there was no letter conditioning appointment on staying out of politics. They were removed after a new administration won local office and said they wanted new people who would support their ideas and policies. There was no claim that they had not performed their jobs. The PRB pointed to Ward's requirement that the appointee be willing to implement the policies of the appointer. Appellants had supported the other side in the election. But (so far as the decision reads) during the appeal they did not state their willingness to implement the new policies. The PRB held there was no evidence one way or the other on appellants' willingness. Accordingly appellants had not carried their burden and the appeal failed.

Riley v Local 1853, 11 PRB 93, 99-101 (2000).

In one appeal the GM department appointed an insurance representative and then removed him because in the director's view "political differences" with the local administration impeded his ability to do the job. An investigator for the director had concluded that the local leadership would be hard pressed to sustain any claims of dereliction of duty. The PRB upheld the director nevertheless, saying the situation

constitutes a valid basis for Bluestone's replacement of Piper.... This is so even though the impediments to Piper's effectively discharging his responsibilities might have arisen due to circumstances quite beyond his control.... Of course, the exercise of such discretionary authority may not be abused. Were Piper to have been removed for an improper reason, such as because he was a member of a minority group, then his removal could not be countenanced.

Appeal of Piper, 2 PRB 541, 543 (1977);

compare Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), pp 10-14 (PRB treats claim of political animus by UAW differently than claim of political animus by local officers).

I don't follow the reasoning which distinguishes between the right to be a member of a minority group and the right to express yourself politically.

Compare LaPresta v Local 1112, 8 PRB 266, 268 (1994) (appellant argues that "the values protected by ... the free speech and democratic practices section of the UAW Constitution are just as fundamental to our society and to the UAW as is race and sexual equality.").

Several decisions, treated elsewhere, discuss the due process rights an appointee can expect if he or she makes an EPC claim concerning his or her status.

Other decisions have discussed the political rights of appointed reps.

Davis, 1 PRB 214, 218 (1961) (PRB will not extend its authority into employment grievances of UAW staff members),

Northrup v UAW, 2 PRB 467, 469-70 (1977) (contractual UAW appointee "serves at the pleasure of the appointing official," and may be removed by Ford department because of political differences with local administration),

Webster v Local 51, 2 PRB 856, 865 (1981) (since LEB with membership approval has power to appoint, local president may not unappoint),

Ford v UAW, 4 PRB 222 (1984), 4 PRB 268 (1985), 5 PRB 363, 365 (1987), 5 PRB 587 (1989) (removal of much-coveted UAW rep position and membership privileges from member for misappropriating union funds)

Mejia v Local 365, 5 PRB 454, 459 (1988) (preponderance burden to show speech activities motivated removal of locally appointed rep),

Luksch v Local 686, 5 PRB 590, 596 (1988) (distinguishing between policy-making and policy-executing; removal of local appointee because she supported opponent in election would violate EPC),

LaPresta v Local 1112, 8 PRB 266, 272 (1994) (claim of removal of local appointed rep for political reasons presents unique issues),

Kidd v Local 1264, PRB Case 1467 (3/19/04), p 8 (UAW department need not establish just cause to remove appointee or demonstrate that removal was fair).

One decision discussed the method of computing overtime hours of an elected time study rep.

Dolin v Local 420, 9 PRB 201 (1996).

Elsewhere are decisions on the grievability of jointness issues.

One decision tangentially discusses whether it could be an EPC violation to appoint a member with a criminal record.

Appeal of Atwan, 1 PRB 95, 96 (1960) (suggesting that, but for the criminal convictions being 14 years old and having occurred before adoption of AFL-CIO EPC code III, appointing or suffering to remain in local office of members convicted of double-dipping might have violated AFL-CIO EPC code III).

One decision discusses a committeeman, who was also a team leader, who told members he was a supervisor with authority to dock their pay and assign overtime. Whether he was right or wrong about this was a matter of interpretation of the local agreement which should have been determined by the membership, the PRB held in agreement with the IEB, even though the charge otherwise properly alleged unbecoming conduct.

Torres v Local 594, PRB Case 1572 II (4/23/08), pp 1-2, 4, 7-8.

Finally, in a CAC appeal appellants asked it to disapprove negotiations because they had been authorized by local presidents and chairpersons during a joint-funded leadership meeting, not a meeting of the GM Council. Action relating to negotiation was improper at such meetings, appellants urged. The CAC disagreed:

Appellants intimate there is something improper about these discussions at the Leadership Meeting, because it occurred during a caucus of the UAW leadership, during a session which was otherwise funded by joint funds. This Committee sees nothing in the least questionable. Both Management and the UAW regularly caucus among themselves on such occasions. For the last 70-odd years, UAW and its representatives have been bargaining with Management on GM property and time, and caucusing as needed to get the job done for the membership. Appellants, if right, would "taint" the most routine handling of a grievance, on the floor of the plant, by a Committeeperson on the clock.

Fetting v GM Department, CAC Decision (4/4/06), p 13 n 11;

compare article 19 section 3 (international officers and representatives lack authority to negotiate contracts without first obtaining the approval of the local union),

article 20 section 5 (the purpose of an intra-corporation council is to coordinate demands of separate member locals, formulate policies dealing with the common employer, and to meet to forumulate bargaining demands at least 30 days before the opening of negotiations for a new agreement).

Bargaining, strikes, contract ratifications

Bargaining

The PRB summarized the collective bargaining process in 1998.

When an employer either agrees or is required to recognize a union as bargaining agent for its employees, this initiates the process of collective bargaining. The ultimate end of the process is to reach agreement on wages, hours, and other terms and conditions of employment for employees in the bargaining unit. When agreement is finally achieved, the proposed contract is submitted to the full affected membership for ratification. Once that contract is ratified and becomes effective, both the employer and the union are bound by its terms for the duration of the agreement. At the end of the period, either party may propose changes in the language of the agreement and the process is repeated for so long as the collective bargaining relationship endures.

Laurin v Local 6000, 10 PRB 169, 173 (1998),

Bargaining is what the UAW is all about, and is what this manual is least about.

[Members] may not use the grievance procedure to achieve that which they have been unable to accomplish at the bargaining table.

Rice v Local 719, 10 PRB 564, 567 (2000).

The Local Union Bargaining & Grievance Representative's Handbook (the "the handbook") offers pointers for local bargainers. I summarize here only briefly what look to be the main points.

Handbook, pp 71-84.

Before negotiations begin start to collect data on your company from stockholder reports and libraries.

At the start of negotiations ask the company for more specific data. It should give you: historic hours worked, historic and current numbers of workers, labor cost and classification/wage breakdown, and life, medical, and dental insurance data. Though you might not get it, ask additionally for income statements, current and expected contracts, extraordinary costs/writeoffs/income, balance sheets, operating plans and assumptions, and new order backlogs.

Then sum up the per-employee-hour cost of the company's present package, and of the demands you intend to make. Start to build three different files.

First is the history of each contract clause, including bargaining history, grievances and dispositions, arbitration decisions, specimens of contracts at other companies or other unions, and cost-of-living indexes.

Second are your own recent experiences, including penalties imposed, grievances and their associated contract clauses and points of origin, clauses which caused discontent among the membership without generating grievances, arbitration awards and required language changes for the ones which were unfavorable, circumstances of any confrontations between union and company reps or of work stoppages, and systems and substance of communication between the two parties.

Third is a "bargaining book" with separate pages on: a grouped seniority list; data on each operation in the unit; each contract and fringe plan clause, its history, and desired changes; average earnings, overtime, and fringe benefits in the unit; projected costs of increases; labor cost per unit manufactured, selling price per unit, percentage of labor cost to unit cost; and data on recent settlements in comparable industries.

Finally, begin meeting. The handbook suggests stylistic techniques related to timing, order of subjects, stalking horses, tit-for-tat, flexibility, notetaking, precision, orderliness, demeanor, visual aids, statistics, good faith, and respect of the other side.

Sometimes contracts are settled only after only after strikes or lockouts. More rarely, sometimes they are settled by interest arbitration.

The constitution suggests that the local membership has the absolute right to instruct negotiators in bargaining strategy. The PRB hasn't always seen it that way.

Article 19 section 3 ("No Local Union Officer, International Officer or International Representative shall have the authority to negotiate the terms of a contract or any supplement thereof with any employer without first obtaining the approval of the Local Union."),

see also article 19 sections 3-5 (ratifications),

article 50 sections 1, 5-7 (strikes);

Benchich appealing Abernathy v Local 909, 5 PRB 576, 578 (1988) (local may not discipline shop committee for refusal to abide by membership resolutions to poll the membership about contract goals, return to the bargaining table, have the local president at all meetings with management, and reinstate the 1984 agreement until a new one could be negotiated),

Local 2036 v UAW, 11 PRB 135, 142-43 (2001) (UAW may impose administratorship if membership's democratically-decided, stubborn bargaining strategy means eventual destruction of the local).

The basis for the UAW's traditional opposition to "two-tier" agreements is article 19 section 6:

The International Executive Board shall protect all Local Unions who have succeeded in establishing higher wages and favorable conditions and have superior agreements, so that no infringement by Local Unions with inferior agreements in workplaces doing similar work may be committed against the Local Union with advanced agreements.

Article 19 section 6.

A 2005 decision considered a negotiation by an intra-corporation council. In 1999 Delphi was about to spin off from General Motors but the parties negotiated one national agreement for both and combined the votes of the two units in the ratification.

By 2003 the companies were separate, though there remained flowback rights and common fringe benefits between the companies. GM members outnumbered Delphi members by 4-1. Except for a supplement to provide "competitive" wages and benefits for new hires at Delphi, negotiation of which was to be attempted later, the same national agreement was bargained at each company.

The two national agreements were ratified jointly because, the UAW asserted, this assisted its goal of maintaining GM-level wages for incumbent Delphi members and lower wages for future Delphi members. Delphi members passed it by 72% and GM members by 80%. Bargainers then began work on the supplement and reached tentative agreement. New Delphi hires were to receive $11/hour less and no defined benefit pension plan; the supplement would outlast the national agreement by four years. The UAW then declared the supplement effective without further ratification.

There was no evidence the GM council or the bargaining convention had considered or endorsed any proposal for "competitive" wages. Nor does the decision mention reliance by either company on the union's joint strategy. Characterizing the supplement as "two-tier," appellant Gregg Shotwell argued it "severs the traditional solidarity between generations." He said joint ratification by members at two different companies was improper, and secondly the Delphi members should have been allowed to vote on the supplement.

The IEB noted the integrated fashion in which the two companies operated, and ruled the joint bargaining structure, strategies, and policies made sense. It rejected a separate vote by Delphi members, saying that the GM and Delphi members' ratification had given Delphi bargainers discretion.

At the PRB, the president's office repeated these points, and added a rationale the IEB had not adopted, that separate ratification could create serious practical problems. The president said the two companies negotiated for an entire integrated collective bargaining agreement including the competitive wages for new hires at Delphi. If the supplement were voted down, he argued, Delphi might say the vote was of no effect, or alternatively that it voided the entire national agreement. In reply, Brother Shotwell acknowledged possible serious practical problems, but said they could not stand in the way of principled constitutional interpretation.

The president also argued the PRB had no jurisdiction over the combined-vote issue, being that the ratification process was part of the union's bargaining strategy.

The PRB began by acknowledging

[i]t may well be that one of the reasons for combining the ratification votes on the 2003-2007 UAW-GM-Delphi National Agreement was to assure ratification of the Agreement by the widest possible margin; however such a motivation does not run afoul of the guarantee that members shall be entitled to a full share in Union self-government.

As to the supplement, first the PRB rejected the UAW's argument that it was a mere implementation of the jointly-ratified national agreement. Still, it upheld the supplement. The PRB reasoned that had Delphi members rejected it, that would have dismantled the ratification framework and the bargaining strategy. In effect the Delphi members would have assumed unacceptable veto power over the "national agreement." The GM agreement was apparently included in this term. The PRB concluded:

The International Union has the authority and the flexibility to establish ratification procedures, even one which provides for ratification of a Supplement prior to its negotiation.

Compare Liddell v UAW, 2 PRB 92, 111, 117 (1974) (dissent) (ratification must precede implemention),

Poszich v UAW, 2 PRB 125, 144, 150 (1974) (dissent) (ratification must precede implemention),

Lartigue v UAW, PRB Case 1605 (1/28/09), p 9 (president argues that even if appellants proved serious constitutional breaches in procedure of contract ratification whose result has been announced, it is doubtful that the remedy of a re-vote would be appropriate).

The PRB noted that its holding that the ratification strategy prevented Delphi members from exercising a "veto" dodged the novel issue whether it could ever review a ratification procedure established by a bargaining policy.

A curiosity of the decision is that it repeatedly refers to the "2003-2007 UAW-GM-Delphi National Agreement" in the singular, though there was no such single document. There were two mirrored agreements signed by two companies, as the parties acknowledged, the UAW-Delphi national agreement and the UAW-GM national agreement. The one exception to the mirror was the Delphi supplement.

As noted elsewhere, the ratification procedures of article 19 are unclear. Still, the PRB's announcement that ratification can precede negotiation even in the absence of enabling language is startling.

Equally startling is the assertion that the EPC permits bargainers to adjust the voting unit to achieve a desired voting result. Even if the union did pursue legitimate goals in this case, this rule will invite manipulation in future ratifications, possibly resulting in a contract being ratified that should have lost or vice-versa.

Finally, suppose instead of appealing Shotwell had organized politically among union officials and been able to convince or force bargainers to insist, say, that new hires' wages be $5/hour less rather than $11/hour less, resulting in a breakdown of negotiations and the supplement. The ratified national Delphi and GM agreements would have remained binding without it. The decision acknowledges Delphi members could have validly "vetoed" the supplement in this way without disturbing the ratification framework or the bargaining strategy of mirrored contracts. Yet the PRB says that organizing politically among the members rather than officials, and "vetoing" the supplement in a ratification vote would have been improper. Allowing for political activity among officials while precluding the same activity among members is particularly wrong-headed.

Compare Stephens v Champion Department, 4 PRB 349, 352, 354 (1985) (UAW did not unfairly champion rights of Toledo workers over Hellertown workers),

McMillan v Local 659, PRB Case 1555, p 13 (5/7/07) ("[McMillan points out that under the two-tier wage structure in place at Android Industries, the Company could replace him with a cheaper employee [after his discharge]."),

Collins v Region 1A, PRB Case 1607, pp 4-8 (11/25/08) (in face of appellants' argument that allowing truck drivers to transfer into general utility classification at different rates in 2004 and 2006 constituted a two-tier agreement, PRB answers this was within the terms of the Rouge site competitive operating agreement, which was within the wide range of reasonableness allowed to unions by court decisions; so there was no contract violation).

A 2006 appeal challenged the UAW's authority to agree to mid-contract health-care concessions sought by General Motors. The company was concerned about its viability and had threatened to modify or elminate health plans for retirees. It opened the books for the union. An independent analysis concluded the financial hardship was real and the need for relief was immediate. At a joint-funded meeting of local presidents and chairpersons -- not of the GM Council -- they voted to allow negotiations. Later, a tentative agreement was reached including newly-created co-insurance and defined-contribution structures, wage deferrals for active members, and a deferred expiration date.

The appellants argued that this was a "new" contract and that the constitution's procedural requirements for new contracts -- coordinating local demands, formulating bargaining policies, and a council meeting 30 days before negotiations -- were not followed. Moreover, the only pre-negotiation union-side meeting was joint-funded, and therefore inappropriate for action relating to negotiations. The democratically-elected GM council should have been calling the shots, not the appointed GM department, appellants added.

Article 19 section 3 ("No Local Union Officer, International Officer or International Representative shall have the authority to negotiate the terms of a contract or any supplement thereof with any employer without first obtaining the appproval of the Local Union."),

article 20 section 5 ("The purpose of the Intra-Corporation council shall be to coordinate the demands of the separate members [i.e. member locals] and to formulate policies in dealing with their common employer. The Intra-Corporation council shall be convened not later than thirty (30) days prior to the opening of negotiations for a new national agreement to formulate bargaining demands....");

Local 148 appealing Powell v Local 148, 8 PRB 129, 138, 140 n 12 (1994) (once voted on, council policies bind the local unions).

The CAC disagreed, saying the requirements of rank-and-file input applied only "where the union is the party making the demands, not management." It added that no "particular setting or ceremony" is necessary for the locals to pre-approve negotiations by the GM department. Styling the meeting which voted to approve negotiations as a "caucus of the UAW leadership, during a session [of a Leadership Meeting] which was otherwise funded by joint funds," it found nothing inappropriate in the vote; company and union negotiators regularly caucus during negotiations, it said.

Fetting v GM Department, CAC Decision (4/4/06), pp 10-13.

A 2009 decision concerned the EPC as it applied to "coalition bargaining," a practice wherein the UAW and its Local 7777 bargained jointly with three non-UAW unions against three Detroit casinos. Voting of all the unions was pooled in the 2007 contract with one of them, MGM Grand. Contrary to UAW policy, the ballot "stated that a no vote would result in a strike rather than continued negotiations". The contract passed narrowly overall, 976 to 878. But among UAW members, according to the appellants, it failed 475-75.

Typically of coalition bargaining, the four unions had conflicts among each other. Even if not resolved satisfactorily to UAW members, the PRB said, there can still be benefits, including the fact that the UAW represented casino employees at all. The president's staff gave the history:

The three casinos commenced operations in Detroit in July 1999. At that time, the [UAW president] set himself the task of ensuring that all of the casinos' employees had Union representation. Traditionally, in the casino industry, the Teamsters, the Operating Engineers and HERE represent the trucking, operating engineers, and hotel and restaurant employees. Dealers and associated jobs are usually unrepresented. [He] reached an understanding with the Teamsters, the Operating Engineers International Union and HERE that the UAW would organize and represent classifications not typically represented. This understanding, which was memorialized in writing on September 9, 2003, is the DCC ["Detroit Casino Council"].

The name "Detroit Casino Council" is just a convenient way of referring to the four International Unions that represent employees of the casinos. The International Unions participating in the DCC conduct negotiations with the employer through a Bargaining Committee pooled from the four Unions. Each Union picks its own Bargaining Committee members and there are no DCC elections. The association is entirely permissive, operating by mutual sufferance.

...

It is an interesting theoretical question whether or not the UAW's ability to enter into this sort of consortium is foreclosed when the other Unions fall short of meeting the standards embraced by the UAW Constitution.... Certainly, Article 2, §6(b) and (c), of the UAW Constitution teach the need for flexibility.

Article 2 section 6(b) (IEB is authorized to take action to enable the UAW to mobilize, assist, and work with other organizations),

article 2 section 6(c) (UAW "shall seek to affiliate groups of employees, whether by agreement or merger. To do so, and better accomplish this objective, the [IEB] is authorized to allow necessary deviations from specific provisions of this Constitution, provided however, that any such affiliations must be ratified not later than the next regular convention.").

So the DCC is not a separate entity with actual existence. Yet the model including pooled ratification was followed for ten years without problems, the president said, until the 2007 ratification. That year problems prompted the unanimous local membership to move that the UAW separate from the DCC in future negotations.

The important constitutional issues were:

• The ballot language saying a "no" vote would result in a strike was prepared by one of the other unions, but it was against UAW policy. According to an IEB finding, in an informational meeting before the balloting, a UAW rep explained the "actual consequence" of a contract rejection in detail. This suggests the rep may have explained a "no" vote didn't really mean there would be a strike. On the other hand the IEB cited article 49, which is about "strike balloting" not ratification votes. The PRB decision does not spell out exactly what the rep said.

Article 19 sections 3-4 (ratification votes),

article 50 section 1 (strike votes).

• An hour after the all-day balloting began, according to the appellants polls closed so the DCC negotiating team could be summoned to discuss circulating flyers which urged rejection.
• The polls closed again around 11:00 am when it was announced that a substantial number of printed ballots "were lifted from one of the voting stations." Of the 3000 ballot printed, between 1600 and 2200 ballots -- over half -- were missing. The decision does not identify the names or titles of whoever ordered the poll closure; it seems to have been the DCC bargaining committee. The closure continued for approximately an hour, during which there was a shift change for dealers, a large UAW block. During closure the DCC unions placed the already-cast ballots and sign-in sheets under seal, numbered the remaining uncast ballots, and then printed and numbered new ballots on different-colored paper, which were used for the remainder of the day when polling reopened. The IEB determined the closure disenfranchised about 86 members -- not a sufficient number to affect the outcome -- but it noted some of them may have returned and voted later. Appellants questioned the accuracy of the number 86.
• When appellants first protested to the UAW, its response was to refer them to the DCC, which has no officers or method of deciding protests, and whose address the UAW did not know.

Appellants wanted a re-vote under UAW rules. Eventually the president's staff acknowledged the appeals, and referred them to Local 7777 for initial review, which it is to do whenever a complaint cites the EPC. The local membership backed the protests unanimously. They came back to the IEB.

The request for future separation from the DCC was referred to a UAW vice-president. Appellants were told "a letter will be sent to the Detroit Casino council" at the unknown address.

IN rejecting the appeals, the IEB said if UAW members were discovered to be involved in strike ballot fraud they would be subject to severe punitive sanctions.

Article 49 (fraud in strike balloting is punishable under article 31, with a mandatory penalty of debarment from elective or appointed office anywhere in the UAW for 2-5 years.).

The IEB added:

there is no separate ratification procedure for UAW members in place at the casinos, so that even if another ratification vote were ordered for UAW members, it would serve no useful purpose.

Appellants appealed to the PRB. The president defended, saying there was no impropriety that would justify rejecting the results of the ratification. The president acknowledged:

There were aspects of the ratification process that were not done in accordance with UAW practices. A UAW ratification process would not be conducted by the same Bargaining Committee that negotiated the contract. The UAW would not have prepared a ballot suggesting that a no vote would necessarily result in a strike.

The PRB added:

[I]t appears that some of those favoring ratification of the MGM Grand contract engaged in aggressive tactics during the ratification process that would not be tolerated in a process under the sole control of the UAW.

As for the lifted ballots, the president argued that prompt action was taken to protect the integrity of the process and only 86 members "may have been inconvenienced." He concluded:

We acknowledge the possibility that some particularly egregious violation of the ratification process, such as direct manipulation by the employer, could put the UAW in a position where it would be required to reject the result of this process.

...

Even if appellants had established the existence of serious Constitutional violations, however, it is doubtful that the remedy they now seek would be appropriate. Notice of ratification of the collective bargaining agreement between the DCC and MGM Grand Casino has been given. It is difficult to imagine a situation that would justify reversing the ratification of a negotiated contract retroactively, and potentially sending the casino's employees out on strike.

This quote of the president gives one example of a "particularly egregious" violation -- employer meddling -- but it does not give other examples or flesh out a full definition. Why a particularly egregious violation would justify a rerun but a serious constitutional one would not -- particularly where the PRB's job is to decide constitutional violations -- is not explained. The assertion that serious constitutional violations may not be remediable echoed a passage in a dissent of two PRB members in 1974. As noted elsewhere, I don't agree with it.

As to the ballot wording, the president said the UAW was powerless to dictate the language to other DCC unions.

On the merits, the PRB rejected the appeal. It held that members urging rejection of a narrowly winning contract have a "very high burden," which it said wasn't carried here. There was no conclusive evidence that anyone actually was intimidated. Voters who were turned away from the polls could have come back later and voted "even if it was unlikely that they would." The poll closure was a measure to protect the integrity of the election process. It resulted in a "disenfranchisement of a large group of voters" but not a deliberately intentional one.

The problem of the case, the PRB said, was inherent in the decision to agree to coalition bargaining. A major complaint of appellants, which I did not list in the bullets above, was that UAW issues got lost amid those from the other unions. Assuming that were so, the PRB responded that this was an inevitable consequence of coalition bargaining, which implicates bargaining policy. I don't disagree.

But there are other issues. As to ballot wording, the PRB said it understood the UAW could not dictate terms to the other unions. Certainly this is true, but that doesn't speak to the question. First, there is no suggestion in the facts that the three other unions were not equally shocked and would not readily have approved a rerun. Second, even if not, the DCC operated merely by mutual sufferance. Nothing prohibited the UAW from ending the coalition on the spot and setting up a new separate ratification procedure. This is what the unanimous membership wanted anyway.

The PRB did not adopt the UAW's view that even if serious constitutional violations were proved no rerun could be ordered. It did say "it would not be appropriate now to reject the MGM Grand contract retroactively," but this followed naturally from the holding two paragraphs earlier that appellants failed to meet their burden.

In my opinion the lifting of over half the ballots and closure of the polls -- particularly the first closure which was due to the free-speech circulation of the leaflets urging rejection -- should have brought an end to balloting on the spot. Balloting should have ended whether the closure affected the outcome or not, and whether it was done in good faith or not. The persons who actually took the ballots were never identified. The bargaining committee members supervising the ratification at the balloting station in question were the ones who had the opportunity. But it is not necessary to place blame to conclude that these events made a "mockery" of the process, as the PRB said of a committeeperson election in a 2005 decision.

Lescoe v Local 900, PRB Case 1487 (5/12/05), p 16.

To dissipate the taint balloting should have begun all over on another day. As noted elsewhere, in the officer election context some violations are so rank that they justify a rerun regardless whether the outcome was affected or not. Certainly a contract affecting members' terms and conditions of employment for years to come is as important or more important than the election of officeholders who will implement it.

Also in my opinion, if in fact the UAW rep did say before the balloting that the ballot did not mean it that a "no" vote would result in a strike, this would implicate the UAW principle that members are entitled to accurate and complete information before they vote on a contract.

Finally, nothing in the constitution justifies the PRB's suggestion that appellants' burden in a ratification appeal is higher than in any other appeal.

The PRB added that the DCC arrangement does not diminish their ratification rights under the UAW constitution. It thus seemed to reject the UAW's position, quoted above, that in coalition bargaining certain articles of the UAW constitution "teach the need for flexibility."

Article 19 section 3 ("After negotiations have been concluded with the employer, the proposed contract or supplement shall be submitted to the vote of the Local Union membership....");

see also article 50 section 1 ("When a dispute exists between an employer and a Local Union concerning ... any other strikeable issue [the union] may issue a call for a strike vote.").

It concluded with a lecture it has given many times before, about

the need for a process going forward to address similar concerns. The appellants who spoke during oral argument were clearly proud of their association with the UAW with its high democratic standards. These members should have a process to ensure their enjoyment of those standards.

In this particular instance, the PRB said

[T]he disenfranchisement of a large group of voters that resulted from the closing of the polls should have been addressed immediately on the day of ratification after it was brought to the attention of the International Union. As soon as the staff in Detroit were notified of this problem, some attempt should have been made to ensure that all UAW members were given the opportunity to vote in the ratification process, even if it meant continuing the ratification process over until the next day.

This last advice was unnecesary to the decision. Appellants didn't carry their burden, the PRB had just said, and there was nothing to remedy.

Lartigue v UAW, PRB Case 1605 (1/28/09).

There are few other PRB decisions about bargaining. In 2005 the PRB said a company might take an action not required by the contract to maintain a good bargaining relation with the union. A 2000 decision noted that the union got a discharged member an unconditional job offer at a different plant despite that it had lost his arbitration in the plant where he worked. In 2004 the PRB said a local can ask the company to hire individuals related to local officials.

Nickell v Local 590, 2 PRB 47, 52 (1973) (under contract in which there was no right to arbitrate and members declined to strike, local union and UAW advise PRB of continuing efforts to secure appellant's reinstatement in bargaining),

Morgan v Local 6000, 6 PRB 1, 4 (bargaining involves giving, taking, and compromising by all parties),

Rice v Local 719, 10 PRB 564, 567 (2000) ("[Members] may not use the grievance procedure to achieve that which they have been unable to accomplish at the bargaining table."),

Gaul v Local 488, 11 PRB 202, 207 (2001) (there being no contractual support for appellants' grievance, and the union not having the option of striking locally as it did successfully in 1998, the union had no leverage and had to withdraw the grievance protesting implementation of a special attrition plan),

Garrish v GM Department, PRB Case 1480, p 13 (10/25/04) ("The appellants have not identified any provision of ... the International Constitution that would have been violated by the Local Union's request that GM hire two individuals who happened to be related to Local Union officials."),

Morgan v Local 832, PRB Case 1462 (1/13/05), p 11 (to maintain good bargaining relationship with union company might reopen a closed grievance),

Morris v Local 1853, 9 PRB 225, 241, 244 (1999) (job offer obtained at different plant for discharged member despite that union had lost arbitration),

Gillert v Local 594, PRB Case 1591 (6/10/08), pp 9, 12 (choice in negotiations for a local agreeement was either to take the company's offer or consider a possible strike action).

In several decisions, discussed elsewhere, the PRB has noted that sometimes parties settle a matter on terms inconsistent with the contract.

Other decisions concern the PRB's power to remedy discriminatory negotiation practices. Assuming there is ultimate ratification of the resulting contract there would seem to be none, in light of article 33 section 3(f) limitation. That is the provision that says the PRB has no jurisdiction to review official UAW bargaining policy. If the members have ratified a discriminatory contract, I would think that makes it an official UAW policy.

But what seems is not always. The PRB does review such claims. In one, tool machine operators complained of a contract whereby laid-off tool & die and machine repair members could bump into their classification. They appealed first to a local committee which said it couldn't modify an agreement. The IEB later explained the tool & die and machine repair members had the skill to do the tool machine work but not vice-versa. The PRB cited a 1967 precedent, and explained why it had jurisdiction:

However, we have recognized an exception to the principle of non-involvement in bargaining policy claims when it is charged that bargaining policies have been deliberately structured so as to discriminate invidiously against an individual or group of individuals. [footnote omitted] That is the type of claim with which we are confronted here. Appellants contend that a numerically superior group of employees at Local 600, namely tool and die makers and machine repair employees, have caused provisions to be negotiated in the Local agreement which discriminate against the numerically inferior TMO classification. The sole purpose of these provisions, it is claimed, is to advantage tool and die makers and machine repairmen at the expense of tool maker operators who have less political influence.

On the merits the PRB dismissed. It acknowledged that the bumping scheme could be an aberration within Ford; but bumping into lower classifications at the time of layoff is common in the industry, and not discriminatory, it said. The dismissal was without prejudice to appellants reasserting the claim to the CAC.

Berry v Local 600, 4 PRB 53, 56-57 (1983),

citing Local 736 v UAW, 1 PRB 440, 442 (1967) (PRB not foreclosed from "examining claims of discriminatory applications of collective bargaining contract provisions");

see also Lorenz v Local 174, 1 PRB 133, 135 (1960) (for many years males outnumbered females, and membership voted for two separate non-interchangeable seniority categories, held effects were not discriminatory),

Rivett v Local 699, 9 PRB 382, 386 (1997), modified 9 PRB 391 (1998) (when an effect of bargaining policy determinations is claimed to have impacted upon a member in a discriminatory way or was otherwise devoid of any rational basis PRB may consider the claim).

Interest arbitration

To my knowledge, the UAW has no handbooks or manuals, and no appeals have ever been filed, on the subject of "interest arbitration."

Generally, interest arbitration is a process whereby terms of a new contract are settled not by the usual give-and-take of negotiations, but by an arbitrator who considers proposals from both sides and then writes the contract. The parties must then accept the decision, without strike or lockout, and without membership ratification of the result.

Sometimes interest arbitration is required by external law and sometimes it arises by agreement of the parties after traditional negotiations fail.

Rules and standards for interest arbitration can vary, and a complete definition is beyond the scope of this manual. Sometimes the arbitrator has great liberty in the process and sometimes he or she is restricted by narrow requirements. Sometimes the rule is that the arbitrator must accept one party's complete proposal and reject the other's, with no compromise between them.

Because members don't ratify interest arbitration results, the IEB interprets article 19 section 3 as giving them the right before the arbitration starts to full information about the parties' final offers. The ratification consists of a vote on whether to defend the union's position in front of the arbitrator or accept management's offer.

The standards of such a vote are the normal ones under article 19 section 3. It must be at a meeting called especially for that purpose or through such other procedure approved by the regional director to encourage great participation.

Article 19 section 3 interpretation 2 ("Where, pursuant to a prior contractual agreement, bargaining occurs in a context where interest arbitration is the exclusive mens to resolve impasse, the membership will be presented with full information about the final offers by management and the union, and will be given an opportunity to vote on whether to accept management's offer or proceed to interest arbitration in defense of the union's final offer. The meeting at which such vote is taken shall be conducted in accordance with the normal procedures for ratification votes. This procedure shall constitute compliance with the requirements of Article 19, Section 3.") (11/10/05).

Strike authorization

Affected units have the right to authorize a strike and ratify any agreement. A local on strike must have authorization from the IEB or president.

Article 19 sections 3-4; article 50 sections 1, 4, 5;

compare Wright v Local 1069, 5 PRB 775, 793 n 18 (1990) (dissent) (PRB majority's rationale could be used to justify certain wildcat strikes),

Garrish v GM Department, PRB Case 1480, pp 13-14 (10/25/04) (appellants did not perfect an appeal of IEB's decision to authorize local strike),

Lescoe v Local 900, PRB Case 1430 (8/28/03), pp 3-6, 10 (members disciplined for unauthorized refusal to work mandatory overtime).

Authorization is also required to "encourage" employees of any employer to strike or concertedly refuse to work or handle goods. One appeal dealt with trial convictions affirmed by the IEB of members who violated a local membership resolution not to work overtime during contract negotiations. For unexplained reasons the UAW had not authorized the resolution.

An assumption of the PRB decision was that the "encouragement" clause covers concerted refusals to work overtime but the "strike" clause does not. The decision affirmed the IEB, holding that the "encouragement" clause applied only to refusals by employees of a "secondary" employer; the employer here was "primary" so the section didn't apply.

It defined "primary" and "secondary" by analogy to the LMRA, not by resort to constitutional language, convention debates, IEB or presidential interpretations, or other UAW sources. Accordingly the decision is questionable. In ordinary English usage "any" employer includes all employers including primary employers.

Article 50 section 4;

Hess v Local 287, 1 PRB 375, 378-79 (1966);

compare Schrade v UAW, 3 PRB 370, 376 (1983) (PRB must look to the language of the constitution to decide appeal),

McKenzie v UAW, 4 PRB 73, 76 (1984) (discerning apparent intent of convention without reference to debates),

Slawienski v Local 774, 8 PRB 21, 24 (1993) (ratification may occur after implementation).

A vote requesting strike authorization requires a 2/3 majority to pass. Ordinarily the election committee need not conduct it. Ballots should not contain editorial verbiage. The EPC promise of the right to vote in free and fair "elections" applies to these votes. Only members in good standing can vote.

Article 50 section 1(a);

proceedings, 24th constitutional convention (1974), pp 230-31 (debate on procedure for strike votes);

Sabin v Local 599, 5 PRB 566, 569-70 (1988) (ballot verbiage should not restrict voters to biased choices),

Austin v Local 594, 11 PRB 119, 122 (2001) (local bylaw may provide that shop committee conduct strike vote).

Strikes, Lockouts

Commonly, UAW contracts prohibit strikes and suits over grievable matters, requiring the union to settle them through the grievance procedure exclusively. Exceptions are sometimes spelled out for certain issues -- work standards, health and safety, outsourcing -- where mid-contract strikes are allowed after special procedures are followed. Interestingly, no appeal has ever resolved such an issue.

But see Gaul v Local 488, 11 PRB 202, 207 (2001) (there being no contractual support for appellants' grievance, and the union not having the option of striking locally as it did successfully in 1998, the union had no leverage and had to withdraw the grievance protesting implementation of a special attrition plan);

Davidson v Local 1282, CAC, session 1/81 (CAC declines an opinion on propriety of a possible future sympathy strike by a local unit).

But in one unusual appeal, the PRB said the union could strike or sue over a grievance which had been withdrawn by a unit of an amalgamated local and reinstated by the LEB. The opinion doesn't say so, but this could be explained if the contract were about to expire, in which case the no-strike-no-litigation promise would expire with it.

The Unit complied with the Local Executive Board's directive and presented the grievance to the Company once again, but Management stood firm. At this point, the Local Union had to decide whether to pursue the limited options available to it such as a strike or a lawsuit in an attempt to compel the Company to reinstate McMillan.

McMillan v Local 659, PRB Case 1555 (5/7/07), pp 4 n 13, 10, 13.

As the PRB says just below, a strike is the equivalent of war. It requires the utmost in discipline, solidarity, and democratic input.

Article 19 sections 2-4 (local committee participates in all conferences and negotiations, contract requires local vote, approval, and ratification, IEB can reject local approval).

The PRB explained, in an appeal of convictions for violating a mandate against working overtime during contract negotiations:

[W]e are keenly aware of the philosophical and pragmatic bases for sentiments which have found expression in such national policies as the guaranteed right to an individual to refrain from engaging in concerted activity or the right of self determination by the various states on the question of so-called "right-to-work" laws. We find these same sentiments embodied in such challenges as the one presently under consideration.

Yet we cannot hold with appellants that there is some higher law or established tradition which makes it inherently improper for the UAW to insist on compliance by its members with the policies adopted by a majority of those directly involved. A union in a sense is a microcosm of our society -- a society which has dedicated itself to rule by majority voice.

The laws which a union adopts are, like any other laws, binding upon those who comprise its society. Through collective action labor has found a means to realize a more equitable distribution of the total economic product. But effective collective efforts depend for their success upon the degree of adherence by all who are involved. To the extent that those who for personal or other motivations withhold their support of the collective action, the interest of the collective majority is damaged. Labor then must have a means of enforcing its laws upon those who would disobey them for, if it cannot, then the sources of its strength are undermined.

Hess v Local 287, 1 PRB 375, 379-80 (1966);

compare Adams v Local 148, 4 PRB 332, 338 (1985) (strike settlement prohibiting union from charging line crossers with unbecoming conduct does not bar members from charging them),

Sonnier v UAW, PRB Case 1548 II (7/19/07), pp 6-8, 14-15 (because of nearly-four-year delay occasioned partially by unreasonable behavior of appellants' counsel, "equity favors a dismissal" of charge of unbecoming conduct which otherwise would have been referred to a trial committee).

The PRB explained again, in an appeal concerning a 1962 strike against Doehler-Jarvis. Hourly-rated supervisors crossed the line and went in the plant. Later they were ordered to do production work. At the time the supervisors were on honorable withdrawal, with the right to hold and accumulate seniority while out of the unit. After the strike the company had cut-backs, and they returned to the unit. They were brought up on charges for doing the production work, not just for crossing the line. Pursuant to article 17 section 10 they had remained subject to union rules while on withdrawal. At trial no specific evidence was presented against them. They moved for a directed verdict of acquittal, which was denied. Then they testified and admitted the material facts. They defended saying as supervisors they had no union protection from unjust discharge. They were convicted and unspecified penalties were assessed.

The PRB majority upheld the penalties, correctly in my view. Doing production work during a strike is detrimental to the collective interest of the members, it said. The constitution is a contract among all the members. As supervisors defendants' relation with the union was not severed, for they continued to accumulate seniority. The union made no attempt to control their activities while supervisors, and took no action until their return to the unit. They knew when they took supervisory jobs a strike could happen. The majority concluded:

A strike in the labor-management field is analogous to a war in international affairs. Comfort and aid to one side is disloyalty to the other. The appellants by crossing the picket line entered what was, from the Union's point of view, a beleaguered city, an enemy post. While within the "enemy's" lines, were they doing aught that made the strike a less effectual instrument for bringing management to terms, than it otherwise might have been? A strike is not only an economic weapon; it is also a human situation. People are out of work. Anxiety and apprehension increase as the days pass. Workers' families are daily asking their provider when will they resume work, since some of the children need new clothing or the house requires repairs. Beyond the picket lines and within the plant were these supervisors, formerly their colleagues in the Union and at the plant. Is it not fair to expect in the light of such a tense situation, and since their present position was theirs by choice, that appellants on returning to full membership in the Union would present some evidence purporting to show that they did not render the kind of help to management which would prolong the strike and work to the detriment of their striking brethren?

Local 257 v Kellog, 1 PRB 309, 313 (1965);

compare proceedings, 23rd constitutional convention (1972), pp 378-79 (debate on return of forepersons who have crossed picket lines to bargaining unit with large severance pay).

Sometimes a strike will change into a lockout.

Local 2036, v UAW, 11 PRB 135, 136 (2001) (a month after strike for new contract members voted to reject management's offer and return to work under the old contract while continuing to negotiate for a new one, but company locked them out).

The prohibition of belonging only to one UAW local is relaxed for members on strike.

Article 6 section 10.

Some decisions have concerned strike benefits and expenses.

Article 12 section 14,

article 16 section 14;

Administrative letter, volume 49 # 1 (8/1/00) (strike benefit rules);

Appeal of Collins, 1 PRB 694, 695-98 (1971) (good standing necessary for receipt of strike benefits),

Local 248 v UAW, 2 PRB 799, 804-05 (1980) (strike benefit rules must be uniformly applied),

Local 1520, 3 PRB 170, 172-73 (1981) (no expense reimbursement in unauthorized local strike);

compare proceedings, 23rd constitutional convention (1972), pp 384-87 (debate on adding article 48 section 6 which covers collection of owed non-dues money such as overpaid strike benefits).

"Arbitration has been an equitable substitute for relying on the membership's willingness to strike over each and every unresolved grievance."

Handbook, p 68.

Ratification

Several decisions consider whether there is a right to ratify in particular situations.

Daly, 1 PRB 816, 819-20 (1973) (local had right to ratify transfer agreement, but UAW had right to impose jurisdictional settlement),

Gaw v UAW, 4 PRB 280, 284 (1985) (no ratification of agreement which restates existing agreement),

Hairston appealing Tackett v Local 1623, 10 PRB 191, 197 (1998) (no ratification of grievance settlements),

Shotwell v GM Department, PRB Case 1504 (11/29/05), p 19 (interim agreements which alter wages or conditions are supplements and must be submitted for ratification),

Donovan v Ford Department, PRB Cases 1526, 1542 (10/25/06), pp 18-19 (when the VX-54 program left the plant, the local's separate unit operating under a modern operating agreement disappeared, and the local's sister unit operating under traditional work rules absorbed the former VX-54 members, all by operation of the overall local agreement, so there thee was no right of the former VX-54 members to ratify the traditional work rules),

Thomas v Local 155, PRB Case 1543 (1/24/07), pp 8-10 (no right to ratify plant closing agreement which is in the nature of a grievance settlement).

According to two PRB dissenters in 1974, ratification must precede implemention, and nothing can remedy a contract erroneously implemented without proper ratification. In effect, the dissenters seemed to say, such appeals become "moot" at the point of implementation. According to the president's office arguing an appeal in 2009, with incompletely-explained exceptions it is doubtful that serious constitutional violations during ratification would justify a re-vote after notice is given that contract was ratified.

Liddell v UAW, 2 PRB 92, 111, 117 (1974) (dissent),

Poszich v UAW, 2 PRB 125, 144, 150 (1974) (dissent);

see also Lartigue v UAW, PRB Case 1605 (1/28/09) p 9.

I don't agree. First, a member cannot appeal until the result is announced. The president's view would make the whole appeal process vacuous.

Second, the UAW constitution is on the UAW's website. When ratification results are announced, UAW members know article 33 is there to accept protests and that decisions of the CAC and PRB are final and binding (even though PRB decisions under the EPC are not). Employers probably know the same. In any event good faith bargaining would require the UAW to tell an employer right away if an appeal were started, so it would know not to consider anything was final till the appeal was done.

If the UAW wants to expedite the appeal it is free to do so. Prudent appellants should ask it to. Indeed the union could amend the constitution to expedite time limits of all ratification appeals. For years the PRB has asked it to set guidelines in this area.

One decision in 2005 held that ratification may precede negotiation if proceeding in that order is part of the union's negotiating strategy. The union had combined votes of GM and Delphi members as part of a strategy of preserving GM-level benefits for Delphi members.

Shotwell v GM Department, PRB Case 1504 (11/29/05), pp 20-21.

Without proper ratification an agreement is of no force and effect as far as the membership is concerned.

Hopkins v Local 730, 1 PRB 469, 472 (1969), vacated 1 PRB 477 (1969).

Shop committee settlements resulting in changes to or modifications of a contract must be constitutionally ratified. This includes verbal changes or modifications agreed to by the shop committee. Verbal changes and modifications must first be reduced to writing and given to requesting members.

Article 19 section 1 (all agreements must be reduced to writing and properly signed by all parties);

Espinosa v Local 719, PRB Case 1418 (12/18/02), p 6 n 10 ("handshake" agreement valid).

An area of great interest has been the ratification rights of skilled members. The identically-worded 1974 Liddell and Poszich decisions concerned article 19 section 3 in light of historical UAW leadership statements to the effect that skilled members had a separate right to approve/disapprove a contract.

In the 1973 Ford ratification, production agreement production workers had approved it and skilled members had rejected it; the overall majority approved. The UAW declared the contract ratified, but asked the company for further meetings on the issue of voluntary overtime, asserting that issue was the only "valid" reason for the skilled rejection.

At the PRB the UAW argued successfully that article 19 section 3 provided only a separate ratification procedure if a local requested it, not a right of separate approval. Two PRB members dissented. The controversial decisions produced an extended resolution and discussion at the convention two months later. During debate the leadership agreed that if both skilled and production members rejected an agreement, the IEB had no authority to overrule that and it never had.

Article 19 section 3 (IEB may approve ratification procedure whereby apprenticable skilled and related, production, and office workers, technicians, and engineers vote separately on common matters and in the same vote on separate matters;

Liddell v UAW, 2 PRB 92 (1974) (right of IEB to reject agreement approved by majority implies skilled trades' approved request for separate ratification means that on approval by production workers and rejection by skilled trades IEB will determine the meaning of the skilled rejection and attempt to renegotiate with employer),

Poszich v UAW, 2 PRB 125 (1974) (right of IEB to reject agreement approved by majority implies skilled trades' approved request for separate ratification means that on approval by production workers and rejection by skilled trades IEB will determine the meaning of the skilled rejection and attempt to renegotiate with employer),

Liddell v UAW, 2 PRB 92, 111, 115 (1974) (dissent) (right to ratify means right to approve),

Poszich v UAW, 2 PRB 125, 144, 148 (1974) (dissent) (right to ratify means right to approve);

resolution, proceedings, 24th constitutional convention (1974), pp 264-80 (interpreting PRB decisions in Liddell and Poszich not to alter the membership's right to ratify under article 19 section 3; resolved that the IEB will continue to apply ratification procedures in a flexible, coordinated, and beneficial manner);

see also Kizelowicz, 1 PRB 705 (1971) (application for separate skilled trades ratification; historically UAW as industrial union has presented one contract for production and skilled together).

If a contract is not properly ratified in one unit, it will still be implemented if it was properly ratified by a majority of all the affected units. This is the same rule as in elections.

Liddell v Local 600, 1 PRB 413, 416 (1967);

see also Shotwell v GM Department, PRB Case 1504 (11/29/05), pp 17-18 (union demonstrated that the agreement would have been ratified by the majority of the members of Delphi locals even if their votes had been counted separately from members of GM locals).

Grievance settlements and implementations of existing contracts need not be ratified.

Iverson v UAW, 1 PRB 221, 224 (1961) (application of principles of master agreement),

Boldt v UAW, 4 PRB 255 (1984) (implementation of agreement),

Smeltzer v Local 652, 5 PRB 669, 671 (1989) (agreement in the course of administering contract),

Thayer v Region 3, 5 PRB 759, 763 (1990) (deviation from waivable guidelines under national jobs program),

Mutchler v TOP Department, 6 PRB 488, 494-96 (1992) (implementation of employer's need to reduce costs without resorting to a general layoff),

Ellis v Local 326, 8 PRB 244, 247-48 (1994) (memorialization of agreement of how provision was to be implemented in light of changing circumstances),

Beaves v Local 1268, 10 PRB 415, 422-23 (1999) (alternative means of manning work when electricians refuse work opportunity),

Rosa v Local 1645, PRB Case 1463 (11/22/04), pp 8, 10 (agreements regarding the application of contracts to existing conditions do not require membership approval or ratification),

Hodges v Local 600, PRB Case 1618 (6/2/09), p 10 (administrative decisions made in the course of a contract need no ratification).

There is no right to ratify actions of a committee authorized by an agreement to implement it or to negotiate subsidiary provisions. The authorization must be in clear enabling language. In one appeal the PRB allowed a skilled trades and apprentice committee to negotiate layoff priorities for apprentices and employees-in-training in different ways in various plants around the country without requiring ratification. It added a caution that some future action of the committee might require ratification.

Ferrell v UAW, 2 PRB 835, 842-43 (1979) (delegation to skilled trades and apprentice committee);

see also Wooley v Local 553, 1 PRB 571, 575 (1970) (no right to ratify actions of trustees under insurance agreement, it is common for agreements to delegate prerogatives to special committees),

Calloway v Local 887, 2 PRB 428, 440 (1977) (delegation to classifications committee),

Shotwell v GM Department, PRB Case 1504 (11/29/05), p 14 (president acknowledges PRB might have jurisdiction to review an unratified agreement which changed a pre-existing agreement which lacked proper enabling language).

In a 1996 appeal an MOU was created by virtue of American Axle assuming a contract of General Motors and then agreeing to additional provisions. Reps of the UAW GM department came to a local meeting to explain the deal and tell the members they had no ratification rights. Several members appealed, but the president said the interpretation was obviously correct and denied it under article 13 section 8 and article 33 section 2(b). The former section routes certain types of appeal only to the IEB and then the convention. The latter section limits and shortens certain types of appeal; toward the end, it says:

For an interpretation of a collective bargaining agreement by a National Department or Regional Director, where the interpretation is so obviously correct that no purpose will be served by an appeal, and where it is consistent with other provisions of this Constitution and International Union policy, the appeal shall be directly to the International President. There shall be no further appeal from that decision.

Article 33 section 2(b), second-to-last sentence.

Appellants went to the PRB on the issue of whether they could appeal, arguing that this sentence was circular. A PRB majority disagreed, explaining:

In our view, however, the language in question is comprehensible and specific. It requires that in order for the President to exercise his § 2(b) authority there must first have been an interpretation of a collective bargaining agreement by a National Department or Regional Director and a declaration that the interpretation is obviously correct, and is consistent with other terms of the Constitution and with International Policy. The procedural prerequisite is important: If a Regional Director or National Department declares an interpretation of a collective bargaining agreement that has been challenged by a member or members of the Union, obviously correct and consistent with other provisions of the Constitution and International Union policy, some explanation for the ruling would have to be provided, an explanation which the challengers could then attempt to refute. The challenging members can then state their reasons as to why the interpretation of the Department was not obviously correct, contradicted other provisions of the Constitution, or was inconsistent with International policy. Thus, when the matter is appealed to the President he will have an actual case or controversy to decide.

In terms of the case before us, the President, himself a former Director of the Union's GM Department, was intimately familiar with the GM Department's consistently applied position that a memorandum agreement negotiated pursuant to the provisions of Document 91 was not a contract or supplement that was subject to ratification.

We are satisfied that the Department's consistent interpretation of Document 91 since its first inclusion in the collective bargaining agreement that the implementation of its provisions is not subject to ratification is tantamount to a declaration that its position in this respect is obviously correct.

...

Given the Department's consistent position over the years in its interpretation of Document 91 there was no need for it to make a formal declaration to Thompson and her colleagues that its interpretation was "obviously correct." The President explained to Thompson why the Department's interpretation was obviously correct and she has had the opportunity to advance to the President the very same arguments she has advanced to the PRB as to why it was not.

That is, for the limitation on appeal to kick in, the department or director must have declared the interpretation obviously correct -- or must have engaged in a course of conduct tantamount to such a declaration -- before the appeal started.

The majority also suggested that the president waive the time limits whereby appellants could appeal the part of his ruling that was under article 13 section 8 to the IEB.

Thompson v GM Department, 9 PRB 64, 67, 71-73, 78 nn 12, 16 (1996).

Dissenting PRB members objected:

First of all, the point at issue has to be "an interpretation of a collective bargaining agreement by a National Department or a Regional Director." Next that interpretation has to be "so obviously correct that no purpose will be served by appeal." In addition, the interpretation has to be "consistent with other provisions of the Constitution and International Union Policy." If those three (apparently objective) conditions are satisfied, then the Appeal shall be directly the President and there shall be no further appeal from his decision. This provision does not state that if "in the opinion of the President" his contract interpretation is obviously correct and consistent with union policy, then any review of his decision by the International Executive Board is excluded. This critical factor of whose opinion counts is left ambiguous by the wording of Article 33(2)(b). The PRB's majority answer is that the President's opinion about those three conditions is absolutely final and binding.

What the majority ignores, though, is that this is not an Article 33(2)(b) case at all. Thompson did not write to the Union asking for an interpretation by the GM National Department of a collective bargaining agreement. Instead, Thompson and her follow Local 235 members requested a ratification vote about a memorandum recently negotiated by the International with GM and American Axle. The validity of Thompson's claim turns on a complex interplay among three different documents -- Article 19 of the UAW Constitution, Document 91 of the GM-UAW Agreement, and the specifics of the American Axle-UAW Memorandum. Rather than simply an interpretation of the GM-UAW Agreement (as asserted by President Bieber), the true focus of this dispute is about whether the detailed American Axle-UAW "Impact" Memorandum was the type of negotiated agreement that requires a ratification vote under Article 19 of the UAW Constitution.

Thompson v GM Department, 9 PRB 64, 76-77 (1996) (dissent).

In a later appeal the PRB extended the Thompson ruling to include interpretations of contracts by local unions. A dispute arose in the local about a company summer vacation shutdown. The shop committee resolved it by agreeing to an MOU. Members appealed claiming the right to ratify. The president at one point referred the dispute to the regional director, but the decision shows no investigation or interpretation by the director. The president eventually upheld the shop committee's action as obviously correct under article 33 section 2(b) and not further appealable. The PRB agreed.

Hairston appealing Tackett v Local 1623, 10 PRB 191 (1998);

see also Strohmeyer v GM Department, PRB Cases 1434 and 1439 (12/22/03), p 20 (where article 33 section 2(b) is invoked by UAW, PRB has jurisdiction to consider whether appealed decision was in fact based on an obviously correct interpretation of a collective bargaining agreement),

Lee v UAW, 11 PRB 546, 549 (2002) (PRB describes article 33 section 2(b) as "an effort to eliminate ... essentially frivolous grievance appeals");

Chappell, CAC, session 11/93 (Ford department's interpretation of apprenticeship standards is obviously correct).

Ratification issues may implicate relations with the employer. But that is irrelevant to the merits of a ratification appeal.

We recognize that this determination [that an agreement is of no force and effect] may have no effect on the legal obligations of the Union to the employer which are governed by a different set of legal principles.

Hopkins v Local 730, 1 PRB 469, 475 n 7 (1969), vacated 1 PRB 477 (1969);

but see Liddell v UAW, 2 PRB 92, 117 (1974) (dissent) (once erroneously ratified contract is implemented there is no purpose in nullifying it),

Poszich v UAW, 2 PRB 125, 150 (1974) (dissent) (once erroneously ratified contract is implemented there is no purpose in nullifying it).

The legal principles mentioned are those of external law, mentioned elsewhere. As noted there, such law is mostly beyond the scope of this manual. But on the face of it, I expect employers are aware of the constitution's ratification and appeal provisions on the UAW website, and know an appealed ratification may be overturned by the PRB or CAC. I expect the UAW would tell an employer immediately if an appeal were filed. Appealing members might also tell the employer. So even if the employer were not at fault in the ratification process, it would know to wait for finality. I don't see why a court would disagree.

Ratification procedures

Several decisions discuss the procedures for ratification.

Peterson v UAW, 1 PRB 508 (1969) (per capita ratification procedure questioned),

Darling v Local 499, 3 PRB 55, 60-61 (1980) (information meeting and balloting held separately),

Local 72 v UAW, 3 PRB 440 (1983) (standing of members of one local to challenge ratification procedures in another local),

Honey v Local 94, 5 PRB 756 (1989) (dual ballots for local and national agreements),

Slawienski v Local 774, 8 PRB 21, 24 (1993) (ratification may occur after implementation),

Local 2036 v UAW, 11 PRB 135, 138, 140, 142 (2001) (administratorship justified by IEB partially on ground that ratification vote not conducted by election committee, rationale rejected by PRB),

Delling v Local 659, 11 PRB 273, 276 (2001) ("substantial evidence" burden of election appeals apparently applied to ratification appeals),

Delling v Local 659, 11 PRB 273, 277 (2001) (testimony of voters as to how they voted on a contract ratification is inherently unreliable),

Baxter v Local 659, 11 PRB 312, 316 (2001) (no right to have challengers in ratification vote),

Shotwell v GM Department, PRB Case 1504 (11/29/05), p 17 (combining ratification votes of GM and Delphi members to assure ratification by the widest possible margin does not run afoul of EPC),

Shotwell v GM Department, PRB Case 1504 (11/29/05), pp 20-21 (ratification may precede negotiation if that order is part of the union's negotiating strategy),

Lapso v Local 1250, PRB Case 1550 (2/20/07), p 12 ("We do find it significant that no active member of UAW Local 1250 joined in this appeal. ... The fact that no active member of Local 1250 joined in this appeal supports the conclusion that the membership accepted the process and the result."),

Lartigue v UAW, PRB Case 1605 (1/28/09) p 7 (UAW asserts: "There were aspects of the ratification process that were not done in accordance with UAW practices. A UAW ratification process would not be conducted by the same Bargaining Committee that negotiated the contract. The UAW would not have prepared a ballot sugesting that a no vote would necessarily result in a strike.").

The UAW's practice is not to notify sick or laid-off members, or members with preferential recall rights, of a ratification vote.

EP complaint of Trapane, 3 PRB 15, 25 (1980).

Good standing status is not necessary to participate in a ratification vote. The reasoning is obscure. Article 19 governing ratifications does not use the phrase "member in good standing," it is true. It only uses the term "member." But so does article 33 which governs appeals, and appeals are limited to "members in good standing."

A member not in good standing is not a member at all. Nevertheless, in a 1997 officer election appeal appellant Rick Doty pointed out that in a 1995 contract ratification vote, members whose dues were not up to date were allowed to get in after showing only a picket card. The company had stopped checking off dues due to a labor dispute. Brother Doty therefore argued such members should have been allowed to vote in an officer election six months later. Instead, the local had voided the ballots of the delinquent members in the officer election. Therefore, Doty said, "only about 25% of the people represented are eligible to vote" in the officer election. The PRB answered:

The Union is quite correct in its legal analysis of this appeal. As it correctly points out, both the Constitution of the Union and the Labor Management Reporting and Disclosure Act (LMRDA) provide that if a member is in good standing he or she must be permitted to vote in elections for local union officers. There is nothing in either the Constitution or the LMRDA that extends this requirement to ratification votes. [footnote omitted]

Doty v Local 974, 9 PRB 443, 446-48 (1997);

see also EP complaint of Trapane, 3 PRB 15, 25 (1980) (fired members with preferential recall rights would have been allowed to vote had they appeared at ratification meeting);

compare Kelly v UAW, 5 PRB 484, 488 (1988) (fired member, who failed to certify his continuing eligibility every six months with the local under article 16 section 19, lost good standing and therefore "[h]aving ceased to be a member of the Union, he "no longer has any rights under [the] Constitution]," and cannot appeal).

As noted elsewhere, retirees may not vote on contracts.

If a ratification vote occurs at a meeting, the notice of the meeting must state that the meeting is for the purpose of ratification. Ratification can occur by such other procedure approved by the regional director as will encourage greater participation in voting. The issue of what constitutes great participation was argued to the PRB in one appeal without a decision, as noted elsewhere and in the note just below.

Article 19 section 3;

proceedings, 26th constitutional convention (1980), pp 279-83 (in debate of amendment to article 19 section 3 to allow ratification votes to be other than at meetings, president says "The constitutional provision now demands that you have the ratification at a meeting especially called for that purpose. This change would allow you to go to the plant gates or any other way you wanted to do it, as long as you maximize the participation");

Hess v Local 287, 1 PRB 375, 377 (1966) (notice implicitly advising that recommendations of leadership of possible courses of action related to union strategy in collective bargaining was sufficient),

Liddell v Local 600, 1 PRB 413, 414, 416 (1967) (vote without advance notice was a nullity),

Patterson v Local 719, 5 PRB 672, 675 (1989) (proof of adequacy of notice is that large number of members voted);

compare Quesada v Local 2244, 11 PRB 386, 391 (2002) (under election guide the union has a responsibility to maximize voter participation in officer elections; by scheduling an interim election at the local hall for only four hours on a Sunday the election committee had to know the turnout would be very light; though the low turnout might be explained by the fact it was an interim election involving only a single LEB at-large position, by waiting a day it is virtually certain there would have been a substantially larger turnout, ensuring that the candidate elected would more accurately reflect the preferences of the electorate);

Lapso v Local 1250, IEB Decision (8/15/06), affirmed on other grounds, PRB Case 1550 (2/20/07), record pp 157-58, (in nationwide ratification that was expected to be a close vote, vote at one local went forward at the hall without referral of encouragement-of-greater-participation issue to regional director, despite that 2000 members constituting more than half the plant were home that week on a temporary layoff; because national press was reporting heavily on the auto industry it was necessary to get the vote done, despite that some locals might be disadvantaged by the timing; all active members in the local had or had access to summary highlights and meeting notices well before the vote; appeal arguing that to encourage greater participation the vote in that local should have either been conducted by mail or delayed till the end of temporary layoff rejected, despite that 95-vote change of count in that local could have changed the national ratification outcome).

Historically the UAW has distributed highlights of tentative agreements to members before ratification meetings. It has also provided copies of the full text to the locals for membership review at the halls, though it has not always given the full text to members individually. In a 2001 decision however the PRB held that providing information prior to a ratification meeting is not required. If "accurate and complete" highlights -- which contain all substantial modifications to the old agreement -- are distributed at the meeting and negotiators are present to answer questions about ambiguous points, this gives members sufficient information on which to vote.

Karras v Local 653, 11 PRB 183, 186, 188, 189 (2001), reconsideration denied (5/11/01);

see also Callaway v Local 887, 2 PRB 428, 435 (1977) (union's duty is to accurately summarize changes in substantive portions of the agreement affecting membership rights),

EP complaint of Trapane, 3 PRB 15, 17 (1980) (ratification permitted on same day tentative agreement was reached),

Brown v Local 1832, 3 PRB 201, 208-09 (1982) (though UAW rep may have unintentionally misled membership and as a result of oversight some negotiating committee members may have signed a document in error, agreement was not imposed on membership without its consent),

Hofsess v Local 163, 6 PRB 66, 70-71 (1990) (while all available information should be disclosed before ratification vote, in this appeal the essential information was disclosed),

Grant v Local 163, 6 PRB 472, 476 (1992) (normally only highlights not text of agreement are available at time of ratification);

compare Pearsall v Local 12, PRB Case 1475, p 7 (5/26/04), pp 3 n 5, 4, 7 (charge of unbecoming conduct for holding ratification vote without special meeting to inform members of the issues dismissed),

Shotwell v GM Department, PRB Case 1504 (11/29/05), p 18 (highlights adequately informed members that no second ratification vote on supplement to be negotiated was intended).

Unlike election procedures, contract ratification procedures are not spelled out in the constitution. The PRB has recommended numerous times that the constitution spell them out.

Peterson v UAW, 1 PRB 510, 513 (1969) (PRB recommendation to clarify per capita procedures),

Liddell v UAW, 2 PRB 92, 103 (1974) (constitution provides no procedures for conduct of ratification votes),

Poszich v UAW, 2 PRB 125, 136 (1974) (constitution provides no procedures for conduct of ratification votes),

Ferrell v UAW, 2 PRB 835, 841 (1979) (PRB may review claims of improper ratificaton under article 19 sections 3-4),

Baxter v Local 659, 10 PRB 337, 340 (1999) (PRB suggests that the constitution address procedures for the conduct of ratification votes and challenges),

Baxter v Local 659, 11 PRB 312, 316 (2001) ("Some clarification to address the role of challengers might help respond to the procedural misgivings raised in this type of case, but that is a judgment for the members of the union to make, and to this point they have not done so."),

Shotwell v GM Department, PRB Case 1504 (11/29/05), p 21 ("The International Union has the authority and the flexibility to establish ratification procedures, even one which provides for ratification of a Supplement prior to its negotiation."),

Lartigue v UAW, PRB Case 1605 (1/28/09) pp 10-12 ("There was enough evidence of irregular practices and/or misconduct during the ratification vote on the MGM Grand contract to establish the need for a process going forward to address similar concerns. ... The UAW needs to develop strategies to respond to serious deviations from its practices when they occur. ... We encourage the International Union to establish a process for members of UAW Local 7777 through which they can raise concerns about bargaining and ratification procedures at a time and in a context where those concerns can be effectively addressed.").

Conventions

The highest tribunal of the UAW is the convention. Between conventions authority lies in the IEB. Between IEB meetings the president has administrative authority.

Article 3,

article 7 section 1;

Davis, 1 PRB 214, 218 (1961),

Shinn v Region 1A, 6 PRB 250, 254 (1991).

Sometimes the "convention" is referred to as the "constitutional convention."

2002 constitutional convention call.

The constitution itself does not use that phrase, nor does it refer to the "bargaining conventions" which the UAW customarily calls in same years as "constitutional conventions." In 2002 they were held consecutively in one city, but every other year that I know of the two were separated by a period of months, and held in separate cities.

Retirees are not barred from serving, even at bargaining conventions.

Valid credentials of delegates determine the validity of the proceedings of a state CAP convention. I assume the same principle would apply to any other convention.

Article 8 section 17 (credentials committee determines validity of delegates' credentials, has power to order reruns of delegate elections);

Conroy v UAW, 1 PRB 493, 494-96 (1968) (PRB has no jurisdiction over elections of convention delegates),

compare Gally v UAW, 2 PRB 67, 69 (1973) (validity of selection of CAP council delegates determines validity of CAP council proceedings).

Only delegates may speak before a convention.

Proceedings, 23rd constitutional convention (1972), pp 386-87 (non-delegate not recognized).

Convention delegate elections are discussed elsewhere.

The convention is highly political. At one, after the surprise election of a regional director, the Administration Caucus met. A constitutional amendment was drafted to eliminate the region. At the time, amendments not originating in the constitution committee had to be submitted three weeks before the convention. The convention adopted the amendment anyway. The president later argued the three-week rule was only "precatory." Without noticing the three-week rule, the PRB said the EPC does not prohibit political maneuvers at conventions.

Article 8 section 15 (three-week rule of 1998 constitution);

Davis v UAW, PRB Case 1441 (4/15/03), PP 1-4 (EPC does not prohibit political maneuvers at conventions);

compare Webster v Local 51, 2 PRB 857, 864 (1981) (amendment to local bylaw which was noticed only four days before membership meeting violated existing bylaw regarding bylaw amendment procedure; notice period was too short; therefore action amending bylaw at meeting was of no force and effect).

The convention speaks through its resolutions and constitutional amendments. To discern convention intent the PRB sometimes also reviews convention debates.

Convention delegates do not automatically pass every motion brought forward by the leadership.

Proceedings, 22nd constitutional convention, pp 192-95 (1970) (amendment would have extended time limit to file appeals from 60 days to six months, defeated),

proceedings, 26th constitutional convention, pp 188-89 (1980) (amendment would have rationalized local determinations as to number of alternate delegates at conventions, defeated),

proceedings, 26th constitutional convention, pp 206-08 (1980) (amendment would have required three-year terms for stewards and committee, defeated),

proceedings, 27th constitutional convention, pp 234-35, 237-38 (1983) (amendment would have made penalty for frivolous charges more severe than the penalty for malicious charges, changed at suggestion of delegate on the floor and then passed).

Minority reports of committee members are allowed.

Proceedings, 29th constitutional convention, pp 252-53 (1989) (organizing).

Each convention votes on its own rules, typically after a recommendation by an IEB-appointed rules committee. Again typically, the rules provide that resolutions and constitutional amendments come to the convention floor only on recommendation of the convention's IEB-appointed resolution committee or constitution committee, respectively. Notwithstanding, delegates in a floor vote can call out a resolution or amendment not endorsed by one of the committees. I don't know of it ever being done.

Proceedings, 22nd constitutional convention, pp 201-03 (1970) (predecessor of article 10 section 7, ability of member to hold UAW or local office if the member is also a member of or subservient to a political organization which owes allegiance to a government other than the US or Canada, call defeated),

proceedings, 23rd constitutional convention (1972), pp 378-79 (article 17 section 3, forepersons returning to the bargaining unit, call defeated),

proceedings, 24th constitutional convention (1974), pp 224-29 (article 48 section 6, retroactivity of procedure for collecting non-dues money, defeated);

compare rules, 2002 convention, rule # 9 (resolutions or constitutional changes submitted by locals shall be reported out of committee when requested by 256 delegates in a show of hands).

The CAC is a standing committee of the convention. Its decisions are final and binding decisions of the convention itself.

Special note to article 33 of 2006 constitution, p 173 (CAC decisions are considered convention decisions and are final and binding);

see also article 33 section 3(e) Jurisdiction and Procedure ("All decisions of the [CAC} shall be final and binding.").

The PRB usually follows precedents set by the convention.

The PRB rejected one appeal that challenged the IEB's authority to reaffiliate the UAW with the AFL-CIO. The appeal pointed out the convention had made all past affiliation decisions. But in this instance, the IEB scheduled regional conventions having only advisory power. They voted 63-37% for reaffiliation, and the IEB then did reaffiliate.

The president argued that the smaller regional meetings had freer more robust debate and were hence more democratic than ordinary conventions where only a minute fraction of delegates get to speak; in any event article 2 section 6 authorized the IEB to proceed without a convention. The PRB agreed that despite the past practice, under the constitution the IEB could act.

Schrade v UAW, 3 PRB 370 (1983);

see also Downs v IEB, 8 PRB 548, 552-54 (1995) (issue of IEB's deviation from a political convention resolution supporting single-payer national health care is not justiciable).

One curious appeal concerned the election of the director of region 1-A at the 1970 convention. Appellant Robert Battle lost 417.585 to 405.931 to Marcellius Ivory, and challenged some of Brother Ivory's votes from Local 1313. The local had been allotted 7 delegates who could cast 46 votes, or 6.571 votes per delegate. Brother Battle noted that two delegates in Local 1313 said to have cast their votes had not been properly credentialed. Separately, Battle noted only one of the local's seven delegates, credentialed or not, was visible on the floor during the vote, and under convention rules that one could cast only 8 votes. A poll was requested of the Local 1313 delegates but was refused by the chair, wrongly, the PRB held.

The PRB first disposed of the credentials challenge saying it was merely an administrative matter. As to the missing delegates it said:

We take judicial notice of the propensity of members of delegations at Conventions to be at places other then where official business is being transacted.

Battle v UAW, 1 PRB 606, 612 (1970);

compare article 8 section 17(c).

Had the local's delegates been polled they would have been summoned to appear, the PRB held, and non-attending delegates normally keep themselves on call for this purpose. None of the local's delegates say after the fact that the delegation did not intend to cast all 46 votes for Ivory, and that defeats the appeal, the PRB said.

There are several remarkable points here. First, articles 8, 32, and 33 entrust jurisdiction over credentials challenges solely to the convention and to no other body, particularly not to the PRB. And even if the PRB could decide this kind of an appeal, under article 33 the IEB should have decided it first. The appeal bypassed the IEB and came directly to the PRB on extra-constitutional stipulated jurisdiction.

Second, on the merits, as noted elsewhere the PRB has always rejected post-election statements of members in secret-ballot elections as to whom they voted for.

Slawienski v Local 774, 5 PRB 519, 521-22 (1988),

Faison v Local 900, 6 PRB 208, 210 (1991).

The voting at the convention was public not secret. But just as no delegates said they intended to vote for Battle, equally none said they intended to vote for Ivory. Moreover, there is no reason to think that post-election statements by delegates at a convention as to who they intended to vote for would be any more reliable than similar statements in secret-ballot elections.

Third, even assuming post-election statements would be reliable, the facts lead only to the conclusion that the Local 1313 delegates abstained: Yes, they could have been summoned; but they weren't. Absent evidence that the delegates were in fact available immediately for a roll-call, appellant should have been installed; and if it had turned out they were available a re-run should have been ordered. Certainly that would have been a big task, but democracy is sometimes expensive.

Finally, the PRB was troubled by the appeal and recommended changes in convention rules to avoid repeats of similar problems in the future. For my part, I am troubled by the propensity of delegates to leave the floor during the conduct of business at the UAW's most important meeting, and the casual way the UAW and PRB condone the practice.

Proceedings, 23rd constitutional convention (1972), p 193 (vice-president says historically "we would always have trouble before the end of the Convention in getting a quorum"),

proceedings, 25th constitutional convention (1977), p 210 (convention session adjourned for lack of quorum);

Yettaw v Local 599 II, 8 PRB 31, 43-44 (1995) (PRB rejects challenge to UAW allowance for delegate spousal travel to conventions, discussed elsewhere).

In another appeal, the incumbent president was running for reelection. An appeal of his non-delegate opponent sought to obtain access to the convention floor for campaigning, and access to various UAW facilities in the convention hall, on a "level playing field" theory. The PRB rejected it.

EP complaint of Tucker, 8 PRB 7 (1992).

In another appeal a charge was dismissed because it turned on a factual finding previously disposed of by the convention in an election appeal.

Gabauer v Local 25, 1 PRB 691, 693 (1971).

Discrimination

Discrimination policy and apparatus

Article 2 section 2 states the UAW no-discrimination policy. A UAW object is to:

unite in one organization regardless of religion, race, creed, color, sex, political affiliation or nationality, age disability, marital status or sexual orientation, all employees under the jurisdiction of this International Union.

The 1936 constitution listed only religion, race, creed, color, political affiliation, and nationality. In 1972 sex was added. In 1992 age, handicap, marital status, and sexual orientation were added. In 1998 handicap was changed to disability.

Not included among any of these categories are contractual status and historic industrial practice.

Berry v Local 600, 4 PRB 53, 57 (1983) (bargaining discrimination in favor of members in one classification who are numerically superior and have great political influence, against members in another clasification who are numerically inferior and have less political influence, would be invidious and remediable by the PRB; but the facts here do not show such discrimination because the disputed agreement is over 20 years old and members in the disfavored classification has less skill and less seniority),

Tiegs v Local 1866, 8 PRB 426, 430 (1994) (employees with post-1985 seniority hardly constitute a protected class),

Rivett v Local 699, 9 PRB 382 (1997), modified 9 PRB 391, 395 (1998) (discrimination on the basis of historic industrial antecedent is not improper),

Patterson v Local 848, PRB Case 1509 (5/12/05), p 9 (discrimination by union on the basis of shift or other negotiated contractual arrangement is not invidious and not the type of claim over which the PRB has jurisdiction).

But in addition to article 26 the PRB has said, in decisions noted elsewhere, it would review bargaining policies claimed to discriminate in favor of a numerically and therefore politically superior group (such as tool & die makers and machine repairmen) over an inferior group (such as the TMO classification).

The apparatus for implementing article 26 is the civil and human rights department. The 1964 constitution -- the second earliest I have -- called it the fair practices and anti-discrimination department. A 1958 PRB decision also mentions the department.

Local 469, 1 PRB 27, 29-30 (1958).

Its purpose is to implement UAW policies dealing with discrimination and give assistance and guidance to locals in furtherance of their own civil rights committees, which are mandatory. Local committees are to promote fair employment practices and eliminate discrimination

affecting individual members of the Local Union, the International Union, the labor movement, and the nation.

Article 26 section 5.

The civil and human rights department staff is qualified by previous experience and training in inter-racial, inter-faith, and inter-cultural relations. Since 1980 one of its functions has been to assist the UAW in dealing with discrimination based on race, sex, religion, national origin, age, and disability.

I don't know why the staff dealt with age and handicap before 1992, the year those categories were added to article 2 section 2, or why it does not deal with marital status and sexual orientation today. I don't have copies of the convention debates about article 26 in 1980, 1992, and 1998, and would appreciate receiving them from an interested member.

Separately, in article 52 the UAW also recognizes local family auxiliaries, formerly known as women's auxiliaries.

The civil rights guidebook concretizes article 2 section 2. The following are not quotes. They are just my summary of the no-discrimination policy.

• The same benefits are offered to everyone in the UAW. No worker is excluded for any of the prohibited reasons. No segregation is allowed regardless of membership approval.
• All members are made to feel desired, appreciated, and important, in mutual solidarity.
• No restrictions are permitted on the right to run for office for any of the prohibited reasons.
• No local member may be excluded or restricted from local affairs.
• All seniority is applied with equal force.
• There is a single uniform procedure for grievance handling. No favoritism is allowed in grievances or other matters. Every grievance is legitimate until decided otherwise by grievance processors.
• Charges may be filed against any officer, grievance handler, or member guilty of violating the no-discrimination policy.
• The local has initial responsibility for policy enforcement, and is accountable to the UAW.

Civil rights guidebook, pp 6-7.

Additionally the guidebook recommends non-discrimination language for locals to propose to employers.

Civil rights guidebook, p 8.

It recommends procedures for choosing members of a local civil rights committee and relating it to the UAW civil and human rights department, to other local committees and education and CAP programs, and to the larger community.

Civil rights guidebook, pp 8-13.

The pocket guide includes the UAW's 1998 administrative letter on the elimination of workplace sexual harassment. The letter covers harassment both by management and by co-workers.

Pocket guide, pp 174-84.

In October 2000 the GM department issued an educational outline on implementation of non-discrimination policies in several paragraphs and documents of the GM agreement.

Discrimination by management

The guidebook has procedures for grievance-handling. To me they look the same as the procedures for all other grievances. There are also recommendations for coordinating discrimination grievances with the EEOC and state FEP agencies.

Civil rights guidebook, pp 13-16.

Discrimination grievance appeals are collected elsewhere.

Discrimination by a member of the local

To complain against a fellow member, the guidebook says to use the "civil rights internal complaint form." But I expect an ordinary letter would suffice if it identifies you, states the complaint, requests relief, and is signed. Write the complaint carefully, the way you would begin an appeal under article 33.

The committee should meet on the complaint within a month of its regular meeting. There should be notice, an opportunity for testimony, and a record. A report and recommendation is to be made within a month of the hearing. The report may recommend that the complaint constitutes grounds for charges and trial proceedings. The membership considers it at the next meeting, and will either approve or reject the report.

There has been no PRB ruling on this, but I would think a charge filed within 60 days of the membership action would be considered timely under article 31 even though more than 60 days may have passed from the date of the offense.

Dissatisfied parties may appeal from the membership's action by following the procedure immediately below.

The procedure does not deprive you of the right to bypass the civil rights committee altogether and just file a charge.

Civil rights guidebook, pp 17-24.

Discrimination by the local

To complain about discrimination by the local, the guidebook says to use the civil and human rights department's "internal appeal form," but again I would think a letter with all the specifics would do.

Unlike appeals under article 33 the complaint is not filed with the president's office. File it with the chair of the UAW civil rights committee. This is a committee of IEB members noted in article 26 section 2; I don't know the name of the current chair.

If you are appealing membership action, the time limit is 30 days from the meeting where it acted.

The director of the civil and human rights department and the regional director will investigate and report to the IEB committee chair within 90 days. The chair, the civil rights director, or the regional director will then either issue a decision or order a hearing within 90 days.

Unlike under article 33, at a hearing the conveners can summon parties, local officers, and witnesses. The committee has 90 days to act on a director's decision, and submit the action to the IEB.

The IEB's decision is appealable by dissatisfied parties as usual under article 33. I don't know of any appeal ever brought to the PRB through this procedure. But in a 1999 appeal, a member said handling of her termination grievance was infected by racial discrimination.

Civil rights guidebook, pp 24-26;

Ramsey v Region 8, 10 PRB 287, 291 (1999) (race claim not addressed because appellant did not raise it first at the IEB, and the evidence she presented showed if anything discrimination by management not the union),

Sholes v Local 659, 11 PRB 459, 464 (2002) (charge of discrimination by company does not amount to charge of discrimination by union).

PRB non-grievance discrimination precedents

Grievance appeals are collected elsewhere.

A concurring PRB member recently noted the racial implications of a white member's claim -- which was weak internally -- that his actions toward a younger black supervisor in the company parking lot were justified because he suspected the supervisor of driving through appellant's neighborhood looking to take parts from his car. The decision is discussed elsewhere.

A 1960 PRB decision discussed elsewhere approved non-interchangeable sex-segregated seniority categories because they were approved by the male-dominated local membership.

In one appeal local members had expelled a member after a trial committee convicted him of a physical altercation at the heated ratification meeting of an extremely controversial strike settlement. The PRB said evidence supported the verdict and upheld the conviction over appellant Jimmy Mingo's argument that the proceeding was racist. But noting Brother Mingo's militancy for racial equality in the community and workplace, his undenied claim that fights among white union members had not resulted in charges or expulsions, and his argument

that in a right-to-work state such as Alabama, solidarity among trade unionists may be seriously undermined by the expulsion of one whole-heartedly devoted to furthering the antidiscrimination aims of the labor movement,

Mingo v Local 1639, 2 PRB 753 757 (1979).

Non-grievance discrimination appeals other than those just summarized are collected here:

Ethical practices codes, free speech in the union

In 1957 the AFL-CIO adopted ethical practices codes. The PRB was established the same year. The UAW operated under the AFL-CIO codes from then until 1968 when it left the AFL-CIO. Without substantial debate the UAW adopted its own codes at the 1970 convention, where it was described by then-Vice President Leonard Woodcock as being "a more binding code than the one we had been operating under as an affiliate of the AFL-CIO."

Proceedings, 22nd constitutional convention, pp 185-88 (1970) (clarification of officials' duties to "avoid ... the appearance of a conflict of interest" and to guard union mailing lists from outsiders),

PRB 48th annual report (2005), p 2 (online version) (PRB created in 1957),

Appeal of Atwan, 1 PRB 95, 96 (1960) (suggesting 1957 AFL-CIO EPC was not retroactive),

Telakowicz v Local 425, 1 PRB 148, 153 (1960) (appeal protesting the exclusive use by one slate of a local's equipment and supplies to publish campaign propaganda was based on code VI paragraph 1 of the AFL-CIO EPC which guaranteed an honest election),

Siren v UAW, 1 PRB 160, 164-65 (1960) (read in conjunction with article II section 10 of AFL-CIO constitution, article III of AFL-CIO EPC made it mandatory that UAW take necessary action to protect the labor movement from the undermining efforts of Communist agencies),

Davis, 1 PRB 214, 217-18 (1961) (reviewing establishment of PRB),

Unit 1, Local 412, 2 PRB 251, 261-62 (1975) (PRB examines contours of 1959 expansion of its jurisdiction in relation to article 36),

EP complaint of Trapane, 3 PRB 15, 23 (1980) (quoting Woodcock, and asserting the UAW meant to be bound by its new EPC, particularly those relating to democratic rights).

I do not have a copy of the 1968 constitution, and am not clear on what codes were applicable in the period 1968-70. Two PRB decisions do make reference to the existence of codes during this time. I guess the UAW continued to abide by the AFL-CIO codes even though it was not affiliated. I would appreciate information from any knowledgeable member.

Local 306 v UAW, 1 PRB 519, 521 (1969),

Zimmer v Local 927, 1 PrB 551, 553-54 (1969).

There are four codes, titled

• Democratic Practices
• Financial Practices
• Health, Welfare and Retirement Funds
• Business and Financial Activities of Union Officials

Generally, as more fully discussed elsewhere, the EPCs ensure various ethical practices such as free speech, honest elections, fair union trials, and a union with sound financial practices for itself and its funds free of corruption and kickbacks. The EPCs do not concern grievances.

King v Local 600, PRB Case 1528 (4/12/06), p 10 ("It is generally understood that [EPC] complaints should address substantial violations of the fundamental democratic and financial principles set forth in the Ethical Code....").

There are important exceptions to the right of free speech in the union. Here is the exact language of the EPC provision on point:

Decisions on free speech in the union are collected here. A more extended discussion of free speech in union election campaigning is elsewhere. Free speech in the workplace is discussed elsewhere.

Sims v UAW, 1 PRB 200, 205-06 (1961) (absent personal animus or abuse of discretion, mere showing by individuals in opposition to UAW policies that others similarly opposed were treated differently does not establish a case of unfair treatment under EPC),

Robertson v UAW, 1 PRB 632 (1971) (under EPC UAW employee-members may appeal decisions made by UAW as employer; union may condition appointment on curtailment of political activities),

Appeal of Piper, 2 PRB 541, 542-43 (1977) (UAW's removal of UAW-appointed local insurance rep, whom the local leadership was out to "hatchet" because of local politics, upheld on theory that UAW investigated carefully and found that even though the problems may have been beyond the rep's control he could no longer function effectively in his job),

EP complaint of Wilson, 2 PRB 869 (1980), 3 PRB 1 (1980) (UAW-appointed contractual rep may be required to surrender political rights as condition of appointment),

Wirth v Local 596, 3 PRB 217, 219 (1981) (campaign propaganda cannot form the basis of charges),

Laney v UAW, 3 PRB 271, 280 (1981) (offsite free-speech violation by union mob),

Brandt v UAW, 5 PRB 337, 345 (1988)(rule which requires an international rep challenging an incumbent regional director's reelection to take a 90-day leave of absence before the election, and accept reassignment to another region if he or she loses, may create unlevel playing field and give incumbent an advantage but is not per se unfair),

Mejia v Local 365, 5 PRB 454, 459 (1988) (preponderance burden to show speech activities motivated removal of locally appointed rep),

Kelley v Local 400, 5 PRB 503, 505 (1988) (UAW rep must resign to seek local office),

Brandt v UAW, 5 PRB 330 (1987), reconsideration denied 5 PRB 337, 343, 347 (1988) (rule upheld requiring UAW staff rep to take leave on running for international office and reassignment if unsuccessful; running against own boss may be dereliction of duty),

EP complaint of Luksch v Local 686, 5 PRB 590, 596 (1988) (local appointee not removable for exercise of democratic rights, but otherwise has no just-cause protection),

Bier v Local 2500, 5 PRB 805 (1990) (censorship of local president's article announcing her candidacy for third party in civil election),

Yettaw v Local 599, 6 PRB 236 (1992) (distinguishing politics and policy in censorship of local president's articles),

Adams v Ford Department, 6 PRB 444 (1992) (subject to EPC UAW appointee serves at will of appointer),

Ward v GM Department, 8 PRB 228 (1994) (though GM department could have barred appointed reps from running for political office altogether, it could not allow them to run for convention delegate and limit them from supporting the candidate of their choice),

LaPresta v Local 1112, 8 PRB 266, 268 (1994) (removal of local appointee for political activity compared to removal because of race or sex),

Montague v Local 651, 9 PRB 401, 405 (1997) (if one candidate is allowed space to campaign in local newspaper, all must be allowed),

Mieli v UAW, 9 PRB 449, 457 (1997) (member's right to issue leaflet is fully protected, as distinguished from officer's),

McDonaugh v Local 1183, 10 PRB 359, 362-65 (1999) (removal of UAW rep for campaigning in local election),

Warner v Local 599, 10 PRB 575, 580 (2000), reconsideration denied (6/14/00) (officer's signed column may not promote a candidate for local union office),

compare Austin v GM Department, 11 PRB 82, 91 (2001) (appellant's attendance at political caucus meeting may have violated condition of employment of UAW-appointed rep),

Riley v Local 1853, 11 PRB 93, 100 (2000) (reps appointed by previous administration were properly removed by new administration because of its desire for support of new ideas and policies; there being no evidence one way or the other on whether the reps were willing to support the new ideas and policies the reps failed to carry their burden of proof),

Badalamento v Ford Department, 11 PRB 511, 518-19, 521 (2002) (EP complaint of removed appointed rep will be considered because Ford department policy limiting local political activity of appointed reps is unclear, no violation because rep engaged in local politics),

Carver v Local 163, PRB Case 1435 (9/25/03), pp 8-10 (local election overturned because UAW-appointed reps campaigned),

Davis v UAW, PRB Case 1441 (4/15/03), P 4 (EPC does not prohibit political maneuvers at conventions),

Crable v Local 148, PRB Case 1452 (12/23/03), p 11 (it is up to UAW department, not local union, to decide whether UAW rep violated policy against participation in local politics),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), pp 10-14 (PRB treats claim of political animus by UAW differently than claim of political animus by local officers),

Thielen v Local 72, PRB Case 1479 (10/25/04), p 12 n 34 (PRB finds political differences rather than gender differences account for fact that appellant was not called on to review other officers' article submissions to local newspaper),

Esposito v UAW, PRB Case 1563 (4/17/07), Pp 7-8 (right of member to distribute leaflet imputing foreknowledge by local officers of management's intention to lay off third shift is fully protected by EPC).

Of particular note for this manual, the EPCs require that union rules and laws are to be uniformly applied. If the UAW changes its mind on a rule -- say, by amending the constitution or issuing a new administrative letter -- members should be notified. The PRB too is to conform its rulings to precedent, and with one exception always has. It has never changed its mind on a point of principle, and the UAW has never asked it to. Otherwise stated, it has never been wrong. I am not familiar enough with CAC holdings to say whether or not the same is true of it.

Szymczak v Dewyea, 1 PRB 35, 40 (1958) (PRB declines to follow convention exhaustion precedent),

Local 248 v UAW, 2 PRB 799, 804-05 (1980) (strike benefit rules),

EP complaint of McCue, 3 PRB 91, 94-95 (1981) (chair's mere error does not amount to disparate unfair treatment),

Ford v UAW, 5 PRB 587, 589 (1989) (IEB discretion may be limited by rule of uniformity),

Lawless v Local 854, 6 PRB 39, 44 (1990) (nomination acceptance cutoff rule),

McKenzie v UAW, 8 PRB 108, 114 (1993) (IEB can change its mind but locals should first be notified, administrative letters must be uniformly applied),

Patterson v Local 599, 9 PRB 421, 427 (1997) (dissent) (local practice of allowing LEB members to remain in office after losing eligibility due to job shift),

Pearson v UAW, 10 PRB 390, 405 (1999), reconsideration denied (10/28/99), pp 13-14 (ex post facto ruling),

Edwards v Local 148, PRB Case 1468 (6/22/04), p 15 (membership approval of expenditure need not precede incurring the expenditure),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05), p 22 (had local president requested appellant's removal as appointee of DaimlerChrysler department, the established past practice, the promise made to her at the time of her appointment, and the EPC guarantee of uniform treatment might well have constrained the department director's discretion to remove her);

but see Shotwell v GM Department, PRB Case 1504 (11/29/05), pp 20-21 (PRB decision relies on previous PRB Liddell precedent unanimously, including a member who dissented in Liddell.);

see also Pearson v Local 140, PRB Case 1534 (2/15/06), p 7 ("We do not accept Pearson's view that the Union is bound to follow past interpretations of the Constitution in the absence of a formal amendment to the Constitution adopted pursuant to Article 3. The application and interpretation of Constitutional provisions must change with changing times and circumstances.").

Other than in union trials, the EPC does not specifically provide for "due process." Pointedly, in a 1992 decision, the PRB questioned whether any process was due at all when a Ford Department director was deciding whether to remove at-will appointee John Adams. After an investigative hearing ordered by the director, Brother Adams was taken out because when he found out his office was being used by others as a campaign outpost for the "A Team" slate in a local election and he put a stop to it, he did not inform the director the improper activities had occurred and ended. To the IEB and PRB he offered no evidence that impermissible motivation occasioned his removal, and the PRB upheld it.

Adams v Ford Department, 6 PRB 444, 446, 450-51 (1992).

Similarly, in two 1977 decisions the PRB upheld removals requested because of political differences with local leadership. In both cases the UAW conducted pre-termination investigations. In one the investigator found that the local leadership was "out to hatchet" the appellant with claims that would have been unsustainable before a trial committee. The PRB found no "abuse of discretion" in either case, in the sense that it found the UAW (as distinguished from the local) did not remove the reps because of political animus. (The PRB also applies an "abuse of discretion" standard in other contexts.)

Northrup v UAW, 2 PRB 467, 468-70 (1977) (political differences with local administration),

Piper v UAW, 2 PRB 541, 542-43 (1977) (local leadership out to hatchet appellant).

But there may be other contexts where EPC-derived "due process" rights attach. The PRB once referred to them in the appeals context.

Cordilino v Local 887, 10 PRB 40, 45-46 (1998) (appellants' concerns about early adjournment of IEB appeals committee hearing, evidence not being shown them until the hearing, and the appellee's refusal at the hearing to explain certain evidence could have been made the subject of an EPC complaint);

compare Moore, CAC, session 4/99 (with CAC approval IEB reruns election decided by one vote though all the challenger's protests were rejected, because of unidentified "due process" concerns).

And a 2004 decision concerned a good appointed rep who was removed without explanation and contrary to past practice, in a way suggesting the removal may have been for impermissible reasons on the part of the UAW. The IEB held a hearing, but did not require the attendance of the director that removed her. This got the PRB's attention. Its decision spoke at length of the need for factual investigations of EPC claims:

However, nothing in the IEB's opinion or in the International Union's response to Gaston-Kelley's appeal suggests any investigation by the IEB into the motivations behind the decision to remove her from her appointed position.

... Although Gaston-Kelley has not established that an impermissible reason led to her replacement, she has identified a sufficient number of irregularities in the actions taken by the Local Union and the DaimlerChrysler Department to require further inquiry on the part of the International Union.... The failure to conduct a hearing and compel testimony of the principal actors left the hearing officer with no basis for her conclusions [that no impermissible influences were present].... Instead of an investigation, the International Union conducted a hearing in which the appellant, although lacking any power to compel the attendance of witnessees or to require their testimony, carried the entire burden of establishing her claim of improper motivations.

We find that the procedures followed in this case were entirely inadequate and denied appellant Gaston-Kelley the due process guaranteed to her by the UAW's Ethical Practices Codes.

The PRB remanded the appeal to the IEB for a meaningful investigatory hearing. It directed the IEB to keep the PRB and the appellant advised of the progress and disposition of the case.

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), pp 13-14.

The 1977 and 1992 decisions were distinguished because in those cases factual investigations preceded the removal.

Six PRB members participated in Gaston-Kelley. Three concurring PRB members, focussing on the serious allegations and the last of the EP codes, took the due-process issue a step further, saying the PRB should identify the necessary standards of due process in EP cases. They said:

The PRB should not be insensitive to the fact that members of the staff in the International Union office are appointed. While it is likely they must have political support from somewhere, they are not likely to have a sense of independence to go after vice presidents of the International Union, or presidents of local unions which are part of the vice president's or the president's political support group.

...

With the lack of evidence of due process, with the absence of any explanation for the bizarre, one could say arbitrary and capricious, removal of the appellant from a position she has held over a long period of time with impeccable credentials and reputation, this case cannot withstand any ethical practices review -- procedural or substantive.

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), pp 15-16.

At bottom, the concurring members suggested a special procedure be instituted for when top UAW players are accused, akin to a special prosecutor, similar to what was adopted when Region 4 was investigated for corruption in the 1980s.

See also McComb in the matter of Carnahan v IEB, PRB Case 1453 II (10/25/06), pp 4, 9 (IEB appeal-handling denied appellant "due process" in that he was not notified of appeal or appeal hearing).

The EPCs are bound in the 2006 constitution booklet just before the index.

In keeping with UAW practice, in this manual "EPC" when used in the singular without qualification means only the the first code, the "Democratic Practices" code.

EPC coverage

Like the constitution, the EPC does not cover actions of members who are not officers or reps, or the actions of officers or reps when acting only as individuals, the PRB held in the Douglas decision. There, members charged the UAW's human resources director for directing her secretary, a notary at Solidarity House, to type and forge a signature to a made-up protest of a dissident local's delegate election, which resulted in a rerun of the election at a cost of $65,000.

There was no claim she had done this in collaboration with other officers or reps, or as part of UAW policy. By the time of the charge the director had retired but remained a UAW member. The only remedy sought was her expulsion. The president's office notified her of the EPC charge, and asked for responsive information. But a PRB majority held the EPC did not apply. Unlike article 31 the EPC does not provide for the rights to notice of the charges, counsel, a trial, a trial committee, notice of the time and place of a hearing, the opportunity to produce witnesses and confront accusers, or a review of the verdict by members of her local, it reasoned.

Douglas v UAW, 8 PRB 331, 339-40, 346 n 15 (1994), record pp 47-48;

see also Local 469, 1 PRB 27, 31-32 (1958) (enumerating due process rights under the predecessor of article 31),

Szymczak v Dewyea, 1 PRB 35 (1958) (former version of article 33 section 5 requiring exhaustion of UAW appeal rights before appealing to court applied only to appeals of union action),

King v Local 600, PRB Case 1528 (4/12/06), p 10 ("The Constitution does not create procedural barriers to complaints related to violations of the Ethical Practices Codes similar to those applicable to charges presented pursuant to Article 31 of the Constitution.").

But in Region 4, after the EPC issue was referred to the PRB by the IEB, a corrupt manager of a union center agreed to repay $2500 and resign UAW membership and offices. The appeal involved a number of officers and reps in the region. The PRB majority in Douglas distinguished Region 4 because there the member was charged for having acted in his capacity as an officer.

Alleged EPC Violations in Region 4, 4 PRB 142, 149-50, 166-67, 170-71 (1983-85).

What about application of the EPC to the union's response to employer speech-denials? Does the EPC compel the union to grieve such action? In a 2008 decision discussed more fully elsewhere, the PRB said it did not apply:

What Hanscom is apparently seeking from this Board is a declaration that Representative Washington's handling of his grievance violated the Ethical Practices Codes so that he can be assured that the Union will pursue more vigorously in the furure grievances defending his right to publish his Internet blog. ... The Democratic Practices section of the UAW Ethical Practices Codes protects a member's right to criticize the policies and personalities of Union officials, but that protection does not create an obligation on the part of Union Representatives to pursue to arbitration any grievance protesting an employer's interference with this right. ... The fact that the Ethical Practices Codes might prohibit the Union from interfering with Hanscom's Internet postings has no bearing on the merits of his grievance against GM.

Hanscom v Region 8, PRB Case 1590 (8/29/08), p 14.

But the PRB has held the EPC requires a second officer election after a finding that employer threats interfered with first election. However it does not require the union to grieve the threats.

These are peculiar results. Under the EPC in the election case, the union was not at fault. The guilty party was the employer. Yet the union bore the brunt by having to hold a distracting and expensive new election. The employer got off scot-free. It should should have been answerable in the grievance procedure, and the union should have had a duty to grieve.

The same is true of the Hanscom case where the employer sent him home in retaliation for his free speech. Penalizing him was an offense against the entire union, not just Hanscom individually. The union has a duty to protect its members. That's what unions are for.

EPC procedure

The procedure under the EPC is set out in article 32. It is the same as under article 33, and particularly section 4(c), with some additions. That is, generally members must first appeal to the local union, then to the IEB, and then to the PRB.

Douglas v UAW, 8 PRB 331, 340 (1994) (article 33 section 4(c) applies to EPC claim),

King v Local 600, PRB Case 1528 (4/12/06), p 10 ("It is a fairly simple matter for a member to assert an Ethical Practices Complaint.... The Constitution does not create procedural barriers ... similar to those [under] Article 31 of the Constitution. It is generally understood that such complaints should address substantial violations of the fundamental democratic and financial principles set forth in the Ethical Code; nevertheless a member can frame a simple disagreement over procedure or expenses as a violation of the Codes and initiate a complaint....").

Here are the differences:

• A claim against the UAW must be approved by a local.

  Shotwell v GM Department, PRB Case 1504 (11/29/05), pp 3-4, 7-8, 17 (local properly approved EPC claim against UAW where majority of members in three different shift meetings combined approved it and local president certified it, and it was not necessary for appellant to clarify the members' intent by amending the minutes at subsequent meetings),

  Lartigue v UAW, PRB Case 1605 (1/28/09) p 3 (EPC complaint filed with the IEB about ratification process referred initially to local, where membership unanimously backed motion to set aside current ratification and hold new election).

• For a claim against the UAW the time limit is 60 days not 30 (filing and local approval are both necessary within 60 days).
• For an election protest the time limit might seem to be 60 days, not the 7-days-or-next-meeting periods in article 38 section 11 and article 45 section 5. But prudent appellants should observe the 7-days-or-next-meeting rule.

Compare Appeal of Sparks, 2 PRB 406, 410-12 (1992) (fraud which there was no reason to discover earlier justifies use of EPC's 60-day limitation period rather than short appeal period for election protest).

• The local union may be bypassed if the IEB or PRB finds there are substantial reasons.
• Sometimes the PRB requires that an initial EPC claim specifically cite the EPC.
• The PRB can punish a frivolous EPC accuser (though not a frivolous accused).
• The PRB is to be notified of the pendency and disposition of all EPC claims at the IEB.
• The PRB can act on a complaint against the UAW or a local after an IEB decision even in the absence of an appeal, though it has never done so.
• The IEB may submit an EPC complaint directly to the PRB without itself issuing a decision.

  Article 32 section 5(d),

  EP complaint of Trapane, 3 PRB 15, 20 (1980).

Local bypass has been allowed only four times.

EP complaint of King v UAW, 5 PRB 226 (1986) (bypass not allowed),

EP complaint of Tucker v UAW, 5 PRB 228, 229-32, 366, 367-70 (1987) (bypass not allowed),

Ward v GM Department, 8 PRB 228, 234 (1994) (bypass allowed because local likely would have approved EPC complaint, EPC rights are important, appellants established a prima facie case),

EP complaint of Tucker, 8 PRB 7, 16 n 2 (1992) (bypass allowed without explanation),

Austin v GM Department, 11 PRB 82, 91 (2001) (bypass not allowed),

Badalamento v Ford Department, 11 PRB 511, 521 (2002) (bypass allowed without explanation),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), pp 4-6 (after holding local president wrongly ruled appellant's EPC claim out of order IEB addressed merits of claim).

In only one decision has the PRB directed the IEB to advise the PRB chairperson regarding the progress of the investigation and disposition of the case.

Article 32 section 5(a), (b),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), p 14.

The PRB once said that an EP claim had to specifically state when it is filed that it is an EP claim. Dennis Sanders was notified of his local's withdrawal of his grievance on April 16 of the year. He appealed within 60 days, on May 26. He argued that withdrawal was improper because he still had appeals pending for denial of SUB benefits and unemployment compensation which were vital to the grievance. The appeal also charged the local union with race discrimination, a breach of the duty of good faith and fair dealing, and a violation of his privacy, asserting various constitutional rights.

Brother Sanders' initial appeal did not cite the EPC. But when he appealed to the IEB he added an EPC uniformity claim. After disposing of the constitutional issues the PRB rejected the uniformity claim:

Sanders argues that ... [he] filed a timely claim of a violation of the Ethical Practices Codes. He is wrong in this respect. His four page [May 26] letter of appeal ... makes no mention of any claim of a violation of the Ethical Practices Codes, although other references to alleged violations of various constitutional rights are numerous....

To file a claim of a violation of rights protected by the Ethical Practices Codes, under Article 32 Section 5 of the Constitution, Sanders would have had to file his claim with his Local Union within 60 days of the time he first became aware of the act, i.e. the withdrawal of his grievance, that he contends violated his rights.

Sanders v Local 685, 8 PRB 257, 258, 260 (1994).

Sanders seems like an aberration. In other appeals the PRB has considered and granted an EPC claim, though the EPC was not cited at the local level or IEB level.

McKenzie v UAW, 8 PRB 108, 114 (1993) (PRB holds under EPC administrative letters must be uniformly applied though uniformity issue was not discussed by the parties),

Feldman v Local 900, 9 PRB 332, 336, 338 (1997), record pp 49-50, 53-55, 61 (PRB decides election appeal on basis of EPC though at lower levels of procedure appellant relied only on constitution),

Mieli v UAW, 9 PRB 449, 452, 455, 457 (1997), pp 5, 8, 10 (PRB decides free-speech appeal on basis of constitution and EPC though parties relied only on constitution);

Lescoe v Local 900, PRB Case 1430 (8/28/03), p 10 (EPC relied on by PRB though not cited by parties),

Reighard v UAW, PRB Case 1532 II (6/27/06), p 6 (PRB says president's handling of appeal violated specific appellate procedure of constitution as well as principles of fairness and ethical conduct espoused throughout the constitution, though appellant based appeal only on constitution).

If you lose an EPC claim at the local and/or IEB level, the PRB's annual reports and its website say "[the PRB] is the exclusive appellate authority for claims of violations of the Ethical Practices Codes." In a 1995 CAC decision it said the same thing. Member Ronald Braman filed an article 31 charge and a financial-practices EPC claim against the president of his local. He appealed the adverse ruling on the charge, but not the EPC claim, to the IEB which affirmed. He then appealed both issues to the CAC. After rejecting the charge and noting the EPC claim had not been appealed to the IEB, the CAC added:

In addition, Article 32, Section 5(a) of the UAW Constitution places sole jurisdiction to resolve alleged violations of the UAW Ethical Practices Codes with the local union membership, the IEB and then the Public Review Board. The Ethical Practices Codes issue [is] dismissed due to the fact that the CAC lacks jurisdiction.

Braman v Local 699, CAC 1995 report to 31st convention, November 1993 hearings, pp 23-24,

see also PRB 48th annual report (2005), p 8 (online version) (PRB exclusive authority for EPC claims).

But in 2003 the CAC changed its mind, and relied on the EPC to protect a shop chair from a charge under article 31. Member Sandra Jacobson had charged that her shop chair mailed her a note calling her a "bitch." The LEB held the charge proper for trial, and the shop chair appealed to the IEB. The IEB reversed, saying the note was not unbecoming conduct. The CAC explained:

The IEB noted that the International Constitution's Ethical Practices Code contains strong free speech provisions that protect the single utterance of the written speech at issue in the appeal.

...

[Jacobson] appealed. The Convention Appeals Committee ... determined that the isolated comment in a short, private note did not rise to the level of a violation of the International Union, UAW's Ethical Practices Code which protects the free speech rights of all Union members.

Jacobson v Local 95, CAC, session 10/03.

The quotes from Braman and Jacobson are from summaries of the CAC decisions, not the decisions themselves, which I would appreciate receiving copies of from interested members.

If the EPC can be used as a shield, it can also be used as a sword. For example in 1992 the PRB's Yettaw decision held under the EPC that a local union could not censor articles the local president had submitted to the local newspaper. Had appellant Yettaw chosen to go to the CAC instead of the PRB, the CAC could have ruled for Yettaw based on the same reasoning, including the EPC.

Yettaw v Local 599, 6 PRB 236 (1992).

Between the CAC and the PRB, of course the CAC is the superior body. Its decisions are decisions of the convention itself.

Special note to article 33 of 2006 constitution, p 173.

In vesting the PRB with jurisdiction over EPC claims, article 32 section 5 doesn't use the word "exclusive." For many years the CAC has reviewed trials and elections, both encompassed by the EPC. Accordingly I believe Jacobson is the right approach, and Braman and the PRB reports are wrong.

Suppose the CAC changes its mind again; suppose next year it reverts to the Braman rationale and suppose further it stops reviewing election appeals and article 31 appeals. Still, the question whether it has EPC jurisdiction is of practical importance only if the EPC provides substantive protection not found elsewhere in the constitution, a subject discussed in the next subsection. If it does not -- and I believe it does not -- then parties will still be able to get CAC consideration of any EPC issues they want, simply by not labelling them as EPC issues.

EPC procedure has one very surprising feature. Article 32 establishes appeal procedures under the EPC; article 33 establishes appeal procedures under the constitution. Article 32 section 3 lists a number of areas in which PRB decisions are "final and binding," but EPC appeals are not among them. The PRB can only "deal with" EPC claims. Article 33 section 5 obligates members to exhaust all appeals before going to civil court or a governmental agency. If a PRB decision under the EPC doesn't bind the UAW and the parties, what does?

Article 32 section 3 (PRB can make final and binding decisions under article 33 and article 16 section 7, but can only "deal with" EPC matters),

article 33 section 3(e) Jurisdiction and procedure (subject to article 33 section 2(b) CAC can decide all appeals from any IEB decision or action, and all its decisions are final and binding),

article 33 section 3(f) Determining jurisdiction (if PRB dismisses grievance appeal for lack of jurisdiction CAC may then review appeal on timely application but appellant may not re-raise to CAC any issue resolved by PRB),

article 33 section 3(f) Procedures (PRB decisions are final and binding),

special note to article 33 of 2006 constitution, p 173 (decisions of CAC are final and binding convention decisions),

proceedings, 23rd constitutional convention (1972), pp 192-93 (no appeal to convention from a CAC decision);

PRB 48th annual report (2005), p 3 (online version) ("In addition [the PRB] is the exclusive appellate authority for claims of violations of the Ethical Practices Codes.");

Fisher Bargaining Committee v UAW, 1 PRB 588, 590 n 3, 591 n 4 (if appellants appeal to convention after PRB dismissal for lack of jurisdiction, PRB's decision on standing would not bind it);

compare EPC, preface, paragraph 1 (noting that PRB decisions under the constitution are final and binding.

The constitution is not specific. I don't believe there is an administrative letter or presidential or IEB interpretation on the subject. But there would be no point in establishing an elaborate procedure which is nonbinding.

The convention is the union's highest tribunal. For a decision that would bind the parties and the union an appeal to the next convention would seem to be indicated. I write this somewhat tentatively because I don't know that it has ever been done. Article 32 doesn't specify a procedure or time limit for such an appeal. Try using the same format as an initial appeal and assuming the 30-day time limit used for appeals to the CAC, IEB, and PRB. As with other appeals to the convention, the CAC would probably decide it.

Compare article 33 section 3(e) Jurisdiction and Procedure (all CAC decisions are final and binding),

article 33 section 4(c) (most UAW appeal periods are 30 days),

special note to article 33 of 2006 constitution, p 173 (all matters appealed to the CAC will be considered to have been decided by the convention and are final and binding).

Other PRB decisions discussing EPC procedures follow.

Article 32 sections 3-5;

Voytek v Local 1010, 1 PRB 97, 102 (1960) (PRB disapproves failure of IEB to notify it of pending EPC appeal),

Stephen v Local 92, 1 PRB 105, 107 (1960) (PRB disapproves failure of IEB to notify it of pending EPC appeal),

Appeal of Sparks, 2 PRB 406, 410-12 (1992) (fraud which there was no reason to discover earlier justifies use of EPC's 60-day limitation period rather than short appeal period for election protest),

EP complaint of Trapane, 3 PRB 15, 26 (1980) (EPC rights are for those who would assert them),

Thompson v UAW, 4 PRB 23, 25 (1983) (EPC claim of improper administratorship imposed by UAW not properly approved by membership though membership passed resolution in support of ending administratorship),

Iyun v Local 2166, 4 PRB 209, 211 (1984) (failure of IEB to hold hearing on EPC claim against local violated EP procedure),

Toth v Local 723, 5 PRB 269, 272 (1987) (EPC claimant required to proceed under article 32 section 5),

Janowski v Local 9, 6 PRB 407, 411-13 (1992) (requirement to bring EP issues to the local first),

LaPresta v Local 1112, 8 PRB 266, 272 (1994) (recording secretary should have placed appellant's EPC claim on agenda of membership meeting),

Douglas v UAW, 8 PRB 331, 340 (1994) (though claim against UAW was timely submitted within 60 days, local approval of it occurred after the 60th day and therefore it was untimely),

Foley v Local 1097, 8 PRB 454, 456 (1994) (argument that violation was ongoing and could therefore be challenged at any time rejected),

Austin v Local 594, 11 PRB 102, 106 (2001) (in claim against local appellant did not follow EPC procedure at local level),

EP complaint of King v Local 600, 11 PRB 250, 253 (2001) (EP complaint does not substitute for appeal of chair's ruling),

Lee v UAW, 11 PRB 546, 549 (2002) (failure to follow local approval process of EPC),

Kidd v Local 1264, PRB Case 1467 (3/19/04), pp 4, 8 (though IEB and PRB questioned whether local union actually approved EPC claim, both bodies reviewed and rejected merits of claim),

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05), p 19 ("[B]eyond allegations of race and sex discrimination or political reprisal, a claim that an appointed representative was removed [in violation of the EPC] must be specific and describe conduct contrary to generally accepted moral or ethical principles. A claim that the action was simply unfair or unjustified would not be sufficient to confer juridiction on this Board to interfere with a Department Vice President's Constitutional discretion in the matter of appointments."),

Shotwell v GM Department, PRB Case 1504 (11/29/05), pp 3-4, 7-8, 17 (local properly approved EPC claim against UAW where majority of members in three different shift meetings combined approved it and local president certified it, and it was not necessary for appellant to clarify the members' intent by amending the minutes at subsequent meetings),

Sonnier v UAW, PRB Case 1548 II (7/19/07), pp 11, 13 (EPC complaint not presented to local membership).

EPC substantively different?

The following are my summaries, not exact quotes, of the four ethical practices codes.

The "Democratic Practices" Code provides for:

• full membership shares in union self-government, including full freedom of speech and the right to participate in the democratic union decisions,
• the rights to run for office, subject to reasonable rules and regulations, and to nominate and vote in free, fair, and honest elections,
• the right freely to criticize the policies and personalities of union officials, except there is no right to undermine the union as an institution, to vilify other members, to carry on activities with complete disregard of the rights of other members and the union's interests, to subvert the union in collective bargaining, or to advocate or engage in dual unionism,
• fair, regular, and noticed membership meetings,
• fairly and uniformly applied rules and laws,
• due process in disciplinary procedures,
• democratic and fair operations, and
• a union free of corruption, discrimination, and anti-democratic procedure.

The PRB has also suggested there may also be a democratic right to be free of retaliation for exercising appeal rights.

Lescoe v Local 900, PRB Case 1487 (5/12/05), p 15 ("[C]ircumstances suggest that [the member who accused appellant of having instigated a walkout in violation of the contract] may have been acting on behalf of Green Slate supporters or on behalf of the Local Union in retaliation for Lescoe's previous challenge to the election.");

see also Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05), p 23, record pp 168-72 (after decision ordering an appointed rep to be allowed to resume duties the department director did reinstate her but removed her again a week later as an "exercise [of] my discretion," appellant wrote the PRB asserting the action was retaliation for her having appealed, on consideration of her letter PRB members were "deeply concerned," PRB chairman contacted the union, shortly later the new removal was revoked),

Reighard v UAW, PRB Case 1532 II (6/27/06), p 6 ("The right to appeal also forms an important element of the ethical principles embodied in the UAW Constitution.... The International President's refusal to refer Reighard's appeal to the IEB violates not only the appellate procedures clearly enunciated in the UAW Constitution, but also the principles of fairness and ethical conduct espoused thoughtout the Constitution.").

The "Financial Practices" Code provides for:

• holding of union funds in sacred trust for the members' benefit, assurance that union funds are not dissipated and are spent for proper purposes, and reasonable information as to how union funds are used,
• conduct of proprietary functions, including contracts for purchase or sale or for rendering housekeeping services, in accordance with the practice of well-run institutions,
• securing of competitive bids for major contracts,
• no investment of funds in a manner which results in the personal profit or advantage of any union officer or representative,
• no contracts of purchase or sale or for rendering of services which will result in the personal profit or advantage of any union officer or representative,
• no personal profit or special advantage for a union officer, representative, or employee from a husiness with which the union bargains collectively, and
• no loans to union officers, representatives, employees, or members, or members of their families, for the purpose of financing their private business.

In a 2001 decision enforcing this code the PRB said:

We would be remiss, however, in the discharge of our responsibility of "ensuring a continuation of high moral and ethical standards in the administrative and operative practices of the International Union ..." ... were we to fail to remark upon Appellant's observations concerning the practice of Local 2256 in some instances of submitting expenditures for the approval of the local union membership that are simply included as a part of an overall financial report. We agree with the point made by attorney Raymond that this device is subject to substantial abuse as a means of evading debate on expenditures that might otherwise prove controversial. Local 2256, to its credit, brought the issue of the racing car sponsorship to the floor for free and open debate. The vote was close as there were strong arguments on both sides of the issue. It correctly did the same with the issue of the WILX arbitration. But it appears there was no debate on the issue of the so-called extra day for delegates to the TOP and Detroit collective bargaining conventions. The members, in all instances, are entitled to know for what purposes their dues dollars are being expended.

Appellant Mertz can provide a valuable service to her Union brothers and sisters by bringing issues such as these to the floor at the time they are presented for membership approval.

Mertz v Local 2256, 10 PRB 612, 621 (2001);

see also Halstead v IEB, 10 PRB 76, 80 (1998) (local trustees and administrator properly solicited and evaluated bids of accounting firms).

The "Health, Welfare, and Retirement Funds" Code provides for:

• no receipt by union officials, representatives, or employees of any fees or salaries from a fund established for the provision of health, welfare, or retirement benefits, except for reasonable reimbursement provided in a collective bargaining agreement approved by the IEB,
• no compromising personal ties, direct or indirect, with outside agencies such as insurance carriers, brokers, or consultants doing business with union health, welfare, and retirement plans, for officials, employees, or others acting as union agents or representatives, who exercise responsibilities or influence in the administration of the programs or in the placement of insurance contracts,
• complete records of the financial operations of all UAW health, welfare, and retirement funds and programs in accordance with the best accounting practice, and regular audits,
• availability of audit reports to members covered by the fund, and
• full annual disclosure and reports to the members covered by the fund.

These provisions would seem to mean that the union must give copies of audits of welfare funds to any covered member. But in response to an EPC claim protesting the UAW's refusal to provide the audit of a joint fund claimed to be a welfare fund, the PRB director wrote in 2006 that "Article 32 makes no provision for requesting information or compelling the production of documents." Appellant did not take the matter up with the PRB itself.

EP claim of Hanline, undocketed, letter, Bill Hanline to Ron Gettelfinger, 7/21/05 (EPC claim demanding copy of union's copy of audit of UAW-GM joint fund),

EP claim of Hanline, undocketed, letter, Jay Whitman to Bill Hanline, 4/21/06 (responding to other matters but failing without explanation to provide audit),

EP claim of Hanline, undocketed, letter, Ellis Boal to PRB, 5/18/06 (appealing UAW's refusal to provide audit),

EP claim of Hanline, undocketed, letter, Barbara Klein to Ellis Boal, 8/1/06 (declining to docket EPC claim because article 32 does not provide for compelling the production of documents).

The "Business and Financial Activities of Union Officials" Code provides for:

• representation by elected and appointed officials in sacred trust for the best interest of the members and their families,
• avoidance of outside transactions by officers and representatives which even give the appearance of a conflict of interest,
• the highest loyalty to the duties of union office in light of its special fiduciary nature,
• protection of mailing lists from being turned over to an outsider for use in the promotion or sale of goods or services that benefits an individual or a private concern,
• use of mailing lists only for the promotion of the necessary legitimate functions of local unions, and particularly not to promote the sale of furniture, appliances, automobiles, insurance, eyeglasses, or other items, or to enable professionals to solicit the membership,
• no financial interests of officers or representatives which conflict with union duties,
• no substantial financial or other interest -- even in the publicly-traded widely-held stock of a corporation except for stock-purchases plans, profit sharing, or nominal amounts of stock -- in any business with which the UAW bargains,
• no acceptance by union officers or representatives of kickbacks, under-the-table payments, valuable gifts, lavish entertainment, or any personal payment of any kind, other than regular pay and benefits for work performed as an employee, from an employer with which the union bargains or from a business or professional enterprise with which the union does business, and
• application of this code to investments and activities of third parties, where they amount to a subterfuge to conceal the financial interest of union officials or representatives.

Some of these rights are specified in other sections of the constitution. For instance the EPC and the constitution both reference fair elections, trials, and financial practices. The CAC and PRB both can decide appeals on these matters.

Article 8 sections 8, 11, 17, 21-24 (elections of UAW delegates and officials),

article 10 sections 2, 4-12, 16, 18 (elections of UAW officers),

article 12 section 8 (UAW finances),

article 30 (UAW discipline and trials),

article 31 (local discipline and trials),

article 38 (elections of local officers),

article 45 (elections of stewards and committeepersons),

article 46 (local finances),

article 47 (local dues),

article 48 (local audits);

EP complaint of Wirth v Local 596, 3 PRB 243, 247 (1982) (requiring equal timely payment of witnesses at trial, citing EPC),

Glinski v Local 235, CAC 1992 report to 30th convention January 1990 hearings p 1 (trial appeal),

Frey v Local 735, CAC 1992 report to the 30th convention March 1992 hearings p 39 (trial appeal),

Mays v Local 211, CAC 1998 report to the 32nd convention October 1997 hearings p 30 (election appeal),

LeBlanc v Local 372, CAC 1995 report to 31st convention April 1994 hearings p 33 (election appeal),

Jacobson v Local 95, CAC, session 10/03 (article 31 charge).

But not all the EPC rights appear elsewhere. For instance the constitution does not speak of the rights to free speech and to criticize. There is no specific protection for exercising appeal rights. There is no mention of the right to uniform treatment, or to ethical treatment. And where rights like election, trial, and anti-corruption rights do appear, they do not utilize exactly the EPC's language.

So as a whole the EPC gives the impression that, when enacted in 1957, a new set of rights came into being. And indeed, as noted elsewhere, when issuing decisions under the EPC, the PRB sometimes cites it without also citing the constitution.

On the other hand, the EPC preface states that it merely expresses democratic principles which "have always governed" the UAW and its locals. The constitution's preamble does speak throughout of the UAW's dedication to democratic ideals, as well as principles of a participatory, humanitarian, and equitable society where workers have a voice.

Preamble, throughout,

EPC, paragraph 2;

compare Reighard v UAW, PRB Case 1532 II (6/27/06), p 6 ("[The president's action] violates not only the appellate procedures clearly enunciated in the UAW Constitution, but also the principles of fairness and ethical conduct espoused throughout the Constitution."),

Sonnier v UAW, PRB Case 1548 II (7/19/07), pp 6-8, 14-15 (because of nearly-four-year delay occasioned partially by unreasonable behavior of appellants' counsel, "equity favors a dismissal" of charge of unbecoming conduct which otherwise would have been referred to a trial committee).

I take the preface to mean that, theoretically, if the EPC were repealed tomorrow all the rights it enumerates would still be available to UAW members from other sections of the constitution; and indeed, that all the rights were already there when the AFL-CIO first adopted its codes in 1957. Thus the election guide doesn't mention the EPC even though "free, fair, and honest elections" are among the primary EPC guarantees.

Election guide;

see also Egres, 1 PRB 50, 57 (1959) (discussing procedural difference between constitutional and EPC appeals),

LaPresta v Local 1112, 8 PRB 266, 271 (1994) (distinguishing procedures of article 31 and EPC).

But in a 2004 decision also discussed elsewhere, Gwendolyn Gaston-Kelley appealed her non-reinstatement to a UAW-appointed local health-and-safety position on return from a temporary assignment to the joint company-union National Training Center ("NTC"). She appealed under both article 33 and the EPC, saying the NTC director had told her she could return to her local position if the NTC assignment did not become permanent. The PRB first noted that Gaston-Kelly's removal was "contrary to the settled practice, contrary to assurances from an International official on which she relied, and contrary to an International policy statement that frowned upon using local politics as a basis for changing appointed representatives." Then it said:

[The IEB decision] reported that the issues presented by Gaston-Kelley's appeal were: 1) whether Gaston-Kelley's rights as a member were violated, or 2) whether Director Gooden abused his discretion by appointing a permanent replacement for Gaston-Kelley while she was on temporary assignment to the NTC. [footnote omitted] President Gettelfinger adopted this same satement of the issues in his response to Gaston-Kelley's appeal to the PRB. [footnote omitted]

Those would have been the issues had Gaston-Kelly been filing an appeal from her removal under Article 33 of the Constitution. They were not the issues raised by her Ethical Practices Complaint. The issue raised by Gaston-Kelley's Ethical Practices Complaint was whether the decision to remove her was motivated by impermissible reasons on the part of either Director Gooden or [local] President Zappa.

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 (9/15/04), pp 11, 13 (quoted passages), record pp 95, 101, 102, 107 (appellant's appeals state they are brought under both article 33 and the EPC).

So abuse of discretion as to appointees would violate the constitution but not the EPC. And violation of Gaston-Kelley's "rights as a member" is not an EPC issue, but removing her for an impermissible reason is an EPC issue.

The latter proposition implies that removing an appointee for an impermissible reason would not violate his or her substantive right as a member.

I find this all confusing. In early releases of this manual I took the view that it is just as well not to invoke the EPC substantively in appeals. Rather, I said, just appeal to basic fairness, and understand that when a decision or argument is based on the EPC it is equally based on the rest of the constitution. In the end it doesn't matter, I asserted; the PRB decides appeals sometimes citing the EPC, sometimes citing "the constitution," and sometimes citing neither.

Appeal of Atwan, 1 PRB 95, 96 (1960) (suggesting that, but for the criminal convictions being 14 years old and having occurred before adoption of AFL-CIO EPC code III, appointing or suffering to remain in office of members convicted of double-dipping might have violated AFL-CIO EPC code III),

Lorenz v Local 174, 1 PRB 133, 135, 137 (1960) (PRB decides appeal of sex discrimination and democratic principles, relying only on constitution not EPC),

EP complaint of Trapane, 3 PRB 15, 20, 24-26 (1980) (PRB examines the wording of each of the four democratic practices codes and concludes none were violated),

Bynum v Local 235, 3 PRB 85 (1980) (election appeal decided without reference either to constitution or EPC),

Laney v UAW, 3 PRB 271, 280 (1981) (coercive union actions at political picnic violate EPC and constitution),

Wouster v Local 977, 5 PRB 551, 556 (1989) (election appeal decided without reference either to constitution or EPC),

Downs v Local 2250, 6 PRB 193, 197-201 (1991) (PRB remands election appeal which claimed employer interference, without reference to substantive provisions of either constitution or EPC),

Feldman v Local 900, 9 PRB 332, 336, 338 (1997) (PRB decides election appeal on basis of EPC not constitution),

Byas v Local 249, 10 PRB 262, 265 (1998) (EPC not constitution relied on to protect nasty and insulting words at union meetings),

King v Local 600, PRB Case 1464 (4/27/04), p 7 (constitution not EPC relied on to dismiss article 31 charge brought by member arguing that local officials' intimidation violated his EPC free-speech rights).

I am no longer sure this is right. In a follow-up decision in the Gaston-Kelley matter, the president's agent argued the EPC prohibited political reprisal, race discrimination, and sex discrimination, that it required the union to investigate allegations that rights had been abused and to allow appeals, and that it also covered outrageous conduct and violations of statutes. The agent added there is no guarantee of fairness or consistent practice, and EPC claims must be specific and involve clearly objectionable conduct.

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05), pp 15-17.

Parenthetically, I find this a peculiar formulation. The allowance of EPC claims based on statutory rights would cut against the UAW's long-held view that union law does not embrace external law.

At any rate, the PRB disagreed. The union owes employee-members a duty of ethical treatment:

We also accept the position of [the president's office] that beyond allegations of race and sex dicrimination or political reprisal, a claim that an appointed representative was removed for reasons that violate the Ethical Practices Codes must be specific and describe conduct contrary to generally accepted moral or ethical principles. A claim that the action was simply unfair or unjustified would not be sufficient....

...

... We find that [the union's] investigation into Gaston-Kelley's Ethical Practice Complaint focused too narrowly on the impermissible reasons that were only incidental to her Complaint. When Gaston-Kelley was informed by President Zappa that she was no longer the Health and Safety Representative for Local 1248, she did not know what had happened to cause that result. She attempted to discover by what agency she had been removed, but the answers she received were at best ambiguous and inconsistent. We agree with Gaston-Kelley that the protection afforded by the Ethical Practics Codes goes beyond freedom from invidious discrimination or polical reprisal. A UAW member does have the right to expect ethical treatment by the Union.

...

... The International's position seems to be that because Gooden had the authority to remove Gaston-Kelley, and that her only grounds for challenging such removal would be a violation of the Ethical Practices Codes, there was no need for Zappa to go through the motions of requesting her removal or for Gooden to go through the motions of removing her. We find this position unacceptable under the principes embodied in the UAW's Ethical Practices Codes.

...

[Had Zappa requested Gaston-Kelley's removal from her local position while serving at the NTC, the uniformity clause of the EPC] might well have been found to constitute a reason that constrained the Director's discretion to remove Gaston-Kelley, in light of the existence of a substantial past practice at this Local which has not been credibly challenged.

Similarly, Zappa might now request Gaston-Kelley's removal based on the claim that he is unable to work with her.... [T]he Constitution and the Ethical Practices Codes give Gaston-Kelley the right to have her arguments considered in the context of an actual personnel decision removing her from her appointed representative position.

Zappa may request Gaston-Kelley's removal and Gooden may remove her for reasons not inconsistent with the Ethical Practices Codes, but they may not accomplish her removal surreptitiously. She is entitled to notice of any action taken by the Union with respect to her job as Health and Safety Representative at Local 1248.... We acknowledge the broad discretion granted to Department Directors and Vice Presidents by the UAW Constitution, but there is no evidence of an exercise of that discretion by Vice President Gooden in this case.

Gaston-Kelley v DaimlerChrysler Department, PRB Case 1476 II (4/12/05), pp 19-23.

Later developments in the same case suggest there also may be EPC protection for a member who experiences retaliation for having appealed.

Whether the EPC creates substantive rights may be important procedurally, because in the Sanders decision discussed in the previous subsection, the PRB said an initial EP claim had to specifically state it is an EP claim; as also noted Sanders has not been consistently followed. I invite interested members to help clarify these problems.

EPC generally

Other EPC decisions follow.

Appeal of Atwan, 1 PRB 95, 96 (1960) (suggesting AFL-CIO EPCs were not retroactive),

Sims v UAW, 1 PRB 200, 205-06 (1961) (absent personal animus or abuse of discretion, mere showing by individuals in opposition to UAW policies that others similarly opposed were treated differently does not establish a case of unfair treatment under EPC),

EP complaint of Trapane, 3 PRB 15, 25 (1980) (direct submission to PRB without prior IEB decision, notice of ratification vote not required to fired members with preferential recall rights),

EP complaint of McCue, 3 PRB 91, 94-95 (1981) (chair's mere error does not amount to disparate unfair treatment which would violate EPC's promise of uniform application of union rules and laws),

Wirth v Local 596, 3 PRB 217, 219 (1981) (campaign propaganda cannot form the basis of charges),

Laney v UAW, 3 PRB 271, 280 (1981) (offsite free-speech violation by union mob),

Thompson v UAW, 4 PRB 23 (1983) (administratorship),

Alleged EPC Violations in Region 4, 4 PRB 142 (1983-85) (IEB referral under article 32 section 5(d) regarding financial practices in Region 4),

Alli v UAW, 4 PRB 222, 225 (1984) (ex post facto interpretations),

EP complaint of Ford, 5 PRB 23 (1985) (union payments as gifts to UAW officers and reps, timeliness),

Scott v Local 239, 5 PRB 37, 41 (1985) (not vilification to report true statement that member was convicted of embezzling union funds),

EP complaint of King v UAW, 5 PRB 226, 227 (1986) (in EPC claim against UAW member must seek local approval even if local would be unable to remedy claim against UAW),

Sabin v Local 599, 5 PRB 566 (1988) (strike authorization ballot wording),

EP complaint of Luksch v Local 686, 5 PRB 590, 596 (1988) (local appointee not removable for exercise of democratic rights, but otherwise has no just-cause protection),

Bier v Local 2500, 5 PRB 805 (1990) (censorship of local president's article announcing her candidacy for third party in civil election),

Lawless v Local 854, 6 PRB 39, 44 (1990) (equal application of nomination acceptance cutoff rule),

Downs v Local 2250, 6 PRB 193, 200 (1991) (PRB allows possibility that after remand and re-appeal CAC might consider claim of unfair and undemocratic election),

Yettaw v Local 599, 6 PRB 236 (1992) (distinguishing politics and policy in censorship of local president's articles),

Adams v Ford Department, 6 PRB 444 (1992) (appointee),

EP complaint of Tucker, 8 PRB 7 (1992) (convention procedures),

McKenzie v UAW, 8 PRB 108, 114 (1993) (expenses and fraternal delegates at conventions, uniform application of rules),

LaPresta v Local 1112, 8 PRB 266, 268 (1994) (removal of local appointee for political activity compared to removal because of race or sex),

Foley v Local 1097, 8 PRB 454, 457 (1994) (no violation to award contract to the responsible low bidder who is the spouse of the shop chair),

Montague v Local 651, 9 PRB 401, 405 (1997) (if one candidate is allowed space to campaign in local newspaper, all must be allowed),

Byas v Local 249, 10 PRB 262, 265 (1998) (EPC protects nasty and insulting words at union meetings),

Pearson v UAW, 10 PRB 390, 405 (1999), reconsideration denied (10/28/99), pp 13-14 (ex post facto ruling, union rules and law must be fairly and uniformly applied),

Noall v Local 599, 10 PRB 371, 377 (1999) (editor may edit as vilification reference to unnamed "company sympathizers" in officer's signed column),

Nardicchio v UAW, 11 PRB 61, 71 (2001) (removal from office before any violation had been determined),

Austin v GM Department, 11 PRB 82 (2001) (removal as benefits rep),

Riley v Local 1853, 11 PRB 93, 100 (2000) (Saturn AMA appointed by previous union administration),

Wright v Local 594, 11 PRB 124, 128 (2001) (vilification is knowing false damaging statement about an individual),

Badalamento v Ford Department, 11 PRB 511, 518-19, 521 (2002) (EP complaint of removed appointed rep will be considered because Ford department policy limiting local political activity of appointed reps is unclear, no violation because rep engaged in local politics),

Bolen v Local 848, PRB Case 1402 (1/3/03), pp 10, 14 (PRB duty to strengthen democratic processes, right to notice and hearing before discipline),

Davis v UAW, PRB Case 1441 (4/15/03), P 4 (EPC does not prohibit political maneuvers at conventions),

Esposito v UAW, PRB Case 1563 (4/17/07), Pp 7-8 (right of member to distribute leaflet imputing foreknowledge by local officers of management's intention to lay off third shift is fully protected by EPC),

Sonnier v UAW, PRB Case 1548 II (7/19/07), p 13 ("The fact that [the local president] was friends with the new printer [for the local newspaper] does not violate the Financial Practices section of the Ethical Practices Codes. It is understandable and appropriate for the officers of Local 148 to do business with someone they know and trust.").

Remedies under the EPC can be problematic. In one appeal members of a Minnesota local scheduled a picnic in a local park where Ronald Delia, the president of a California local, was to speak about pending plant-closing legislation. A threatening-appearing group of 100 local members and officers came to "blow away" the picnickers, and no speeches occurred. The local's building chairman and newspaper later praised the action. Appellants asked the PRB to order an acknowledgement of local responsibility and an apology. The PRB ordered only that its decision be printed in the local newspaper, saying:

In point of fact, the deprivations which have occurred cannot be remedied. One cannot undo what has happened. Delia was effectively silenced. Both those who may have supported his views and those who may have opposed them have been deprived of the benefits which derive from the free exchange of ideas. The most that can now be hoped for is that these transgressions will not be repeated.

Laney v UAW, 3 PRB 271, 280-81 (1981).

Exhaustion of remedies

Article 33 section 5 requires any individual or body aggrieved by an action, decision, or penalty, to exhaust fully the remedy and all appeals under the constitution and the "rules of this Union" before going to a civil court or government agency for redress. The "rules" are not identified; I suppose they are your local bylaws.

Though the same exhaustion requirement has been in the UAW constitution since at least 1936, there have been few decisions on it. It applies to all types of appeal, whether concerning grievances, elections, or anything else.

Article 15 section 6 (1936 constitution),

article 32 section 13 (1964 constitution),

article 32 section 13 (1970 constitution),

article 32 section 12 (1972 constitution),

article 33 section 5 (2006 constitution);

Turner v UAW, 1 PRB 12, 21-22 (1958) (former version of article 33 section 5 requiring exhaustion of UAW appeal rights before appealing to court applied to IEB action postponing election),

Szymczak v Dewyea, 1 PRB 35 (1958) (former version of article 33 section 5 requiring exhaustion of UAW appeal rights before appealing to court applied to appeals of union action not of member action),

Schriber v Local 699, 3 PRB 99, 103-04 (1980) (former version of article 33 section 5 requiring exhaustion of UAW appeal rights before appealing to court applied to appeals of union action not of member action),

EP complaint of King v UAW, 5 PRB 226 (1986) (member required to process EP complaint against UAW through local union despite local being unable to grant relief),

King v Local 600, PRB Case 1464 (4/27/04), p 10 (article 33 section 5 does not require members to forgo their rights to pursue civil or criminal actions against other members).

At least through 1964, failure to comply with this section was punishable by the IEB (or its predecessor); the IEB could suspend or expel a member or revoke the charter of a subordinate body.

In 1964 the punishment had to be "not inconsistent with any applicable laws." The section did not spell out which "laws" were referred to. Presumably they were internal, probably trial procedure rights, as was indicated by the constitution committee chair during the 1970 convention debate when the penal provision was removed. In 1957, by contrast, the IEB could act summarily without a hearing.

Article 32 section 13 (1964 constitution) (discipline is permitted "insofar as imposition of any such penalty is not inconsistent with any applicable laws."),

article 3 (1964 constitution) (constitution is supreme law of UAW);

compare article 15 section 6 (1936 constitution) ("Any member who violates this section shall be liable to summary expulsion by the General Executive Board.");

Turner v UAW, 1 PRB 12, 21 (1958) (under 1957 version of punishment provision, IEB was permitted without a hearing to summarily suspend members who had appealed to a civil court before exhausting constitutional appeal rights),

remarks of constitution committee chair Lacayo, proceedings, 22nd constitutional convention, p 204 (1970) (referring to provision of constitution about to be deleted as "[e]nforcement of the duty imposed upon each member by the trial procedure...").

In 1970 the penal provisions of the predecessor of article 33 were eliminated. Though the convention debates that year suggest that the delegates' intention was to eliminate all discipline -- even with due process and proper trial procedures under article 31 -- for appealing to a court or agency before exhausting appeals under the UAW's laws, the change was made only in article 33. Article 31 was untouched. It allows a local to punish a member for violating "any provision" of the constitution. The exhaustion requirement remains a vital part of the constitution.

Compare PRB rules of procedure series 18, rule 11 (7/1/04) (revised PRB rule refers to exhaustion requirement).

In a 2004 appeal however, the IEB said "it was never the intent of the delegates to the Constitutional Convention for Article 33, §5, to form the basis for charges pursuant to Article 31." In light of article 31's language, I disagree. The PRB itself did not reach the issue.

King v Local 600, PRB Case 1464 (4/27/04), pp 4-5.

Some appeals concerning situations where members sued without fully exhausting UAW remedies follow. A discussion of the courts' view of that is beyond the scope of this manual.

Beach v Local 653, 1 PRB 502, 505 (1969) (court cannot confer jurisdiction on PRB, appeal dismissed for untimeliness),

Resnick v Local 906, 3 PRB 221, 223, 229 (1981) (court suspends consideration of suit to allow member to pursue internal appeal, president waives time limit, member wins appeal),

EP complaint of Tucker v UAW, 5 PRB 228, 233-35, 366, 371-73 (1987) (failure of appellant to appear at IEB hearing withdrew his appeal despite claim that it was mooted due to pending litigation),

Testerman v Chrysler Department, 9 PRB 165, 170-71 (2002) (after PRB remand and successful arbitration appellant sued for damages, judge asked appellant to return to PRB for damages, held untimely request),

Howell v Local 969, 10 PRB Case 198, 203-04 (1998) (court cannot confer jurisdiction on PRB, appeal untimely),

Long v Local 22, 10 PRB 206 (1998), supplemental decision, 10 PRB 216 (1999) (after remand appellants opted out of further article 33 proceedings and sued, PRB nevertheless determined merits of appeal).

Grievances generally

Stick with the union

According to the pocket guide:

A Grievance Is:

A violation of either the contract, supplementary agreements, state and federal labor laws, health and safety regulations, National labor Relations Board rulings, arbitration or umpire decisions, past practices and policies, or employer's own regulations.

Pocket guide, p 11;

compare Torres v Local 594, PRB Case 1470 (5/25/04), p 13 ("The specific problems ... have been addressed. Any future problems of the type Torres encountered with [the supervisor] would have to be addressed in separate grievances."),

Gillis v Local 1976, PRB Case 1523 (11/23/05), p 7 ("it does not appear that appellant has suffered any injury that could have been addressed through the grievance procedure...."),

Gordon v Local 1112, PRB Case 1594 (6/11/08), p 7 ("[Appellant] has not identified any violation of his rights under the collective bargaining agreement or the Pre-Retirement Option....").

Thus a grievance invokes rules which are not determined unilaterally by the UAW, rules which strictly speaking are not the subject of this manual. Even so, these rules impact members' work lives every day. The union's primary job is to be your interface with the company about them. How well the union does that job is treated here at length.

By far the largest percentage of appeals concern settled or withdrawn grievances. I begin this section with an admonition to grievants who are at a much earlier stage, the stage where the grievance is about to be filed, or has been filed and is pending. I usually don't have to say this to UAW members, but I'll say it anyway.

If the company has wronged you the union is your representative. For several reasons -- including bargaining power and expertise -- in most situations your best chance of righting the wrong is by trying to work with the union. This is so even if the union has or thinks it has little bargaining power and even if your steward or committeeperson seems or is uninterested, incompetent, or hostile.

Seldom is this actually the case. Consider the following, from a 2009 PRB decision. Appellant Ronald Simpson was fired for making a fraudulent claim for disability benefits while he supposedly worked for a second employer. The company's claim was actually baseless. Medical records showed he really was suffering from a severe medical condition and he had ended his employment with the second employer. Before the discharge he could have resolved the matter with a simple telephone call to the second employer. Eventually the disability claim was approved. But in the meantime Brother Simpson did not give the company or union the evidence that would have cleared him. At his discharge, he did not claim innocence. The grievance he signed raised a lame excuse saying he didn't know the company's attendance policy. During the investigation at the second step, he was vague and evasive. His acquiescence in the union's weak presentation raised doubts about his whole story. The union suspected the company's claim might be true. Having no evidence to the contrary, it withdrew the grievance. Simpson appealed and the local membership supported him. But the company refused to accept the grievance back into the procedure. He appealed up to the PRB, which eventually uncovered that he was wrongfully discharged. Still, it held withdrawal of the grievance was rational, based on what the union knew at the time it acted.

The above facts are so bizarre that one wonders if the PRB decision may have mis-stated them. Simpson might have done better going to the CAC instead of the PRB, because of its looser standard for grievance appeals. Regardless, the story makes an important point, that cooperation with the union is critical.

Simpson v Region 1, PRB Case 1623 (6/24/09), pp 15-17.

Before leaving this subject, consider a second example, a more cautionary one. Jeffrey Harris was fired for assisting a co-worker install company products (new seats, trim, and other items) on another employee's personal truck, after permission was given to bring it into the plant for a front-end alignment. Another member assisted Brother Harris in the installation. The truck had a license plate on it, indicating it was not a new vehicle. A supervisor was aware of what was going on; the next day he gave Harris the keys and told him to get the truck off company premises, which Harris did. Later that day Harris was brought to Labor Relations. The union rep told him all the company wanted was the truth and he would probably get only a one-month suspension. He signed a statement admitting he had helped install the company products and had driven the truck off company property to a Wal-Mart lot. The company then fired both Harris and the member who had helped him. The company charged Harris with assisting a theft of company property and with hindering the investitation by driving the truck to Wal-Mart. Over a year later, the supervisor who told Harris to move the truck was still working at the plant, according to a committeeperson. The union got the other member back to work at the third step.

The union pulled Harris's grievance, saying his guilt was definitely established. As to the other member, it said the company hadn't been able to show the other member knew the truck belonged to another employee. Harris answered that couldn't be so because the truck had a license plate. Additionally, the supervisor was still working. He added:

Moreover, I was told by a Local Committeeperson at the time of Ford's investigation that the Company just wanted the truth about my involvement and that I would receive only a suspension. This was bad advice. If I had lied, or not told the Company anything, I would still be working for Ford.

The IEB and PRB upheld withdrawal of the grievance. They said even apart from Harris' confession, the company had "hard evidence" that he had participated in the theft, and also that he tried to hide the evidence. As to the other member, the PRB repeated what the union had said before, that a question had been established whether the other member knew he was participating in a theft.

The PRB did not explain how the other member could not have known a theft was in progress, given that the truck had a license plate. Nor did it describe the "hard evidence" which the company had against Harris, apart from the confession. Nor did it answer why the supervisor who told Harris to hide the evidence still worked there. This is a troubling decision.

Harris v Region 3, 11 PRB 537 (2002).

If the union really isn't doing its job, and if it really is not going out and collecting available evidence and argument, you might end up having to do the legwork yourself. You shouldn't have to spoonfeed the union, but doing it is a better option than having no evidence. In most situations a bad grievance is better than a good appeal or a good lawsuit. There are some few situations where the opposite proves true, but I seldom see them. Anyway there will be time for suits later, if that is your direction.

Pocket guide, p 173 ("Considering the large number of grievances that are processed, there are few duty of fair representation suits, and almost none of those suits succeed."),

Handbook, p 128 ("Considering the large number of grievances that are processed, there are few duty of fair representation suits, and almost none of those suits succeed.").

Do your homework

UAW contracts with employers commonly require management to inform the union of a reprimand, warning, suspension, layoff, or discharge of a member. Customarily, every discharge is grieved.

UAW/GM 1999 national agreement, paragraph 76,

UAW/Ford 1996 national agreement, article VII section 5(a),

UAW/Chrysler 1996 P & M national agreement, paragraph 40;

pocket guide, p 170 ("If a worker requests that a discharge or other serious discipline be grieved, then we advise filing the grievance.");

Sallee v Local 933, PRB Case 1627 (6/25/09), p 7 (appellant apparently did not request a grievance following his discharge, when a timely grievance could have been filed).

If you are fired or suspended ordinarily you cannot go in the plant without company permission, even to go just to the union committee room.

Schillinger v Region 4 , PRB Case 1414 (4/17/03), p 7;

compare Wright v Local 1069, 5 PRB 775, 790 (1990) (fired president denied access to plant).

But you can call a friend who is still working and ask him or her to track down information. Try to get the phone numbers of witnesses who might support you, and then call them or have a friend call them. Have a pencil and paper with you when you call, and take notes. Then give whatever information you find out to the rep, organizing it if necessary.

Members who have been fired sometimes come to feel that they don't want to go back to work, and that they would prefer a solely financial settlement.

Rogers v Region 9, 11 PRB 400, 404 (2002) ("I do not want my job back; I just want the Company to pay for my medical expenses that it has caused me.").

If that is your own feeling, be very sure of yourself before conveying it to a union representative. Unless you instruct the rep otherwise, he or she would be justified in relaying it to the company in settlement discussions. A job with benefits is not something to walk away from lightly, and your statement might be seen as a desire to quit.

Compare Garab v TOP Department, PRB Case 1461 (3/18/04), pp 7-8 (member's refusal of settlement offer of possible reinstatement with seniority with no backpay but a higher pay rate in a different department, and her statements that the only thing she wanted was punitive damages, were factors in PRB approval of union decision to settle meritorious discharge grievance of high-seniority member for backpay only).

If you come by information late, even after the grievance is dropped and while you are appealing, the PRB sometimes lets you get away with submitting it late. But the prudent course is to gather it quickly.

Williams v Chrysler Department, 5 PRB 748, 753-54 (1990) (appellant's explanation that he came forward with information about his heart condition late is plausible in light of statement by attendance counselor after learning of heart condition that nothing could be done to help appellant, PRB orders appellant to produce medical evidence and orders union to evaluate it),

Reighard v UAW, PRB Case 1532 II (6/27/06), pp 7-9 (PRB considers evidence offered by appellant because president refused to comply with previous PRB order).

You should be given prompt written notice and a thorough explanation if the grievance is settled or withdrawn.

Pocket guide, pp 45, 170-71, 173,

Handbook, p 127,

St Hillaire v Local 1459, 3 PRB 32, 35 (1980),

Huntley v GM Department, 5 PRB 416, 421 (1987),

Hauben v Local 3000, 8 PRB 1, 5 (1993) ("It has been our experience in nearly all of the several hundred appeals which have been presented to us from the withdrawal or settelement of employee grievances that the employee is notified in writing of the Union's action."),

Dalton v Region 9, 9 PRB 57, 61 (1995);

compare Reed v UAW, 10 PRB 568, 573 (2002) (UAW rationally withdrew grievance because contract was not violated but gave appellant irrational reasons),

Lombard v UAW, PRB Case 1525 (11/15/06), reconsideration denied (1/20/07), pp 16-17 (president's staff failed to communicate adequately with appellant about the status of his appeal after he won at the IEB level; appellant was entitled to receive prompt and straightforward responses to his inquiries),

Parden v Region 1A, PRB Case 1585 (3/3/08) p 13 (disposing of grievance without explanation to grievant was directly contrary to UAW's policy),

Ilgenfritz v Local 2250, PRB Case 1630 (9/14/09) p 8 ("We cannot determine from this record why Maguire did not immediately communicate his decision [to settle] to Ilgenfritz, but as the International Union has observed, the lapse did no harm.").

If you think the disposition was wrong or unfair, ask about appeal procedures. But first, listen to the explanation and ask questions. There may be facts you didn't know or appreciate that make it a good settlement.

A legitimate judgment not to arbitrate some grievances can be made simply because the exigencies of the situation do not require it when balanced against the expenditures. But when contract violations result in serious personal harm to an employee or group of employees, then the lack of merit in the cause should be clear before the claim is dropped.

Pfeiffer v Local 556, 1 PRB 485, 491 (1968);

see also Body v UAW, 11 PRB 450, 453 (2001) ("Indeed for [the union] to have [arbitrated the grievance] might well have risked undermining its credibility in the eyes of the Impartial Chairman on the occasion of the next meritorious case it sought to present."),

Norris v Region 1A, PRB Case 1485 (2/10/05), p 8 ("Indeed by pursuing this grievance [seeking to overturn a discharge which did not violate the contract], [the union] might well have risked undermining its ability to negotiate second chances for employees with such chronic attendance problems in the future."),

Nash v GM Department, PRB Case 1583 (2/12/08), p 14 ("The sad fact is that Nash has now thrown away $140,000 in order to pursue claims that have nothing to do with him or any rights arising out of his former employment at General Motors.").

If you are not convinced, my pocket guide and handbook unfortunately do not recommend that the rep give you an explanation of your membership status, or appeal procedures, deadlines, or remedies. Quoting from a 1997 administrative letter about the duty of fair representation, they say only that if you ask you should be "referred to the UAW remedies or given a copy of the UAW Constitution and told to examine it." The 2008 version of the letter is even worse. Nothing in it tells reps to tell you anything about the appeal procedures and time limits of the UAW constitution.

Pocket guide, p 172,

Handbook, p 127;

compare Garab v TOP Department, PRB Case 1461 (3/18/04), p 4 (member told of right to appeal under article 33).

You have a right to a copy of the grievance on request, as well as copies of management's answers, the disposition, and the contract, all without payment. A 2008 administrative letter also adds:

In some cases, additional parts of the file, including witness statements and investigation notes, should also be made available. When there is a concern regarding disclosure of any aspect of the grievance file -- for example because revealing the identify of witnesses may place them in jeopardy -- the assigned union representative should inform the grievant that portions of the file are being retained, and the reasons why. In difficult cases, the International Representative may contact the Legal Department for more detailed advice.

Grievance Handling and the Union's Duty of Fair Representation, administrative letter, volume 54 # 4 (8/12/08), p 4.

Pocket guide, p 173;

see also letter, Stephen Yokich to all local union presidents, vice-presidents, recording secretaries, financial secretaries, and chairpersons, 12/19/95;

compare pocket guide, p 49 (all new members should be given a copy of the contract and an explanation of their responsibilities as union members);

Smith v Local 262, IEB Decision (undated, some time in 2002), p 8 (grievance is union property, and decision whether to settle is exclusively union's).

If you request the grievance and disposition promptly, would that excuse waiting to file an appeal till after you received it? Possibly, if you needed to see the paperwork to decide whether an appeal would be worthwhile. But be careful.

Compare Marshall v Local 1364, 1 PRB 522, 528 (1969) (filing an unsuccessful charge regarding grievance-handling extends the time to appeal the grievance disposition if the IEB improperly raises that issue),

Berard v Local 422, 2 PRB 610, 614 (1977) (filing an unsuccessful charge regarding grievance-handling may extend the time to file an appeal of the grievance disposition);

compare Sailer v Local 214, 8 PRB 555, 558 (1995) (mere rumor and unconfirmed fact insufficient basis on which to file charge).

The grievance procedure

Little can be written about the technicalities of your grievance procedure in a UAW-wide manual like this, because every company with which the union bargains has its own grievance procedure with its own quirks and deadlines.

To learn the specifics of yours, get a copy of the contract. UAW locals ordinarily give them out freely.

The UAW's definition of a grievance is elsewhere.

Individual, group, and policy grievances are discussed elsewhere. Multiple individual grievances arising from the same situation or member are discussed elsewhere.

Typically, a grievance procedure provides for a series of bilateral meetings between company and union officials. Certain issues such as management prerogatives are not amenable to the grievance procedure. If a grievance cannot be settled at a step it is referred to the next step where higher-level officials discuss it. These meetings can be thought of as an extension of the bargaining process. Usually only the union, not an individual member, can file a grievance or advance it to the next step. There are often time limits within which a grievance must be filed and answered, and further time limits within which to appeal to and receive an answer at the next step. If bilateral meetings cannot settle it, the ultimate step is to an arbitrator or umpire, whose decisions are final and binding.

Morris v Local 1853, 9 PRB 225, 241, 236 (1999) (arbitration decision is final and binding),

see also Mattox v UAW, 11 PRB 485, 491 (2002) (when union took grievance all the way to arbitration and lost, "it had done all it could do for appellants").

Typically, once the company takes action it may not change the rationale it has given the union.

Vogen v Local 900, 9 PRB 614, 622 (1998), later decision 9 PRB 624 (2000), reconsideration denied (7/19/00) ("[I]n the event that the Company attempts to shift the basis for the discharge of Vogen from a three day quit to some other reason, [the union] shall object."),

LeClerc v DaimlerChryster Department, 11 PRB 321, 325 (2001) (union objected to company's amendment of discharge notice three years afterward, but arbitrator allowed the amendment because the company had promptly, clearly, and repeatedly informed the union that it considered the drug sale charge to be an additional ground for the discharge).

Commonly, the contract says the union may not strike or sue over a grievable issue.

The union should give you prompt notice if a grievance is settled or withdrawn.

Nickell v Local 590, 2 PRB 47, 52 (1973) (under contract in which there was no right to arbitrate and members declined to strike, local union and UAW advise PRB of continuing efforts to secure appellant's reinstatement in bargaining),

Morgan v Local 832, PRB Case 1462 (1/13/05), p 11 (to maintain good bargaining relationship with union company might reopen a closed grievance).

The following are discussed elsewhere in this manual:

• after-acquired evidence,
• allocation of settlements,
• circumstantial evidence,
• compromising a grievance,
• credibility,
• denial of union representation,
• high-seniority members,
• jointness and grievability,
• last-chance agreements,
• "obey now, grieve later," insubordination,
• past practices,
• penalities and progressive discipline,
• probationary and at-will employees,
• subpoenas, and
• timeliness of grievance-processing.

The way UAW reps are to handle grievances is discussed elsewhere.

Sometimes mediation is the second-to-last step of the grievance procedure. The PRB explained it in a 2007 decision.

We think McMillan may be overestimating the role of a grievant at [the mediation] step of the grievance procedure. This would not be a venue for him to plead his case for reinstatement. There would not have been any opportunity during the mediation process for McMillan to argue with the mediator or present any additional evidence to support his position. By this point, the case for McMillan’s reinstatement had already been presented to Management at the first four steps of the grievance procedure. The role of the federal mediator at Step 5 of the grievance procedure is to determine whether there has, in fact, been a violation of the collective bargaining agreement. If the mediator finds convincing evidence that the agreement has been violated, he or she will assist the parties in settling the grievant’s claims. If there is no violation, then there is no basis for settlement.

McMillan v Local 659, PRB Case 1555 (5/7/07), pp 12-13.

As is discussed elsewhere, a local should stay in touch with members who have pending grievances.

As is discussed elsewhere, the union can settle a grievance without the permission of the grievant.

Delay in grievance-processing is discussed elsewhere.

Compromising a grievance where the company and union have differing interpretations is discussed elsewhere.

Voting on grievance settlements is discussed elsewhere.

Settling a matter on terms inconsistent with the contract is discussed elsewhere.

Re-filing previously-withdrawn grievances is discussed elsewhere.

A distinction between contractual and equitable claims is discussed elsewhere.

Other decisions about grievance procedures follow:

Combs v Ford Department, PRB Case 1478 (5/26/04), pp 4, 8-9 (contract excluded from grievance procedure matters related to computers used by jointly funded job security and standards rep),

Keith v Local 524, PRB Case 1458 (2/23/04), pp 1, 5, 8 (disagreeing with IEB, PRB says company may add reason for discharge at fourth step of grievance procedure),

Gillis v Local 1976, PRB Case 1523 (11/23/05), p 7 ("it does not appear that appellant has suffered any injury that could have been addressed through the grievance procedure....").

A few arbitration rules

In deciding grievance appeals the PRB is frequently called on to decide what would have been the likely result had the grievance been arbitrated.

Lombard v UAW, PRB Case 1525 (11/15/06), reconsideration denied (1/30/07), reconsideration p 2 ("The conclusion of the President's staff that the case could not have been arbitrated successfully is still rational based on the entire record."),

Hendley v Region 1, PRB Case 1628 (1/25/10), p 17 ("This would have been a difficult case to make before an arbitrator, however, because there is no system of progressive discipline in the collective bargaining agreement.").

The same is true of the CAC, though it uses a more lenient standard.

Shannon, CAC, session 11/94 (appeal remanded so appellant could take his chances before an arbitrator),

Vargo, CAC, session 11/95 (grievance reinstated even though it would be hard to ask arbitrator to substitute judgment for that of the company and the local),

Young, CAC, session 9/02 (company sent grievant a five-day notice; grievant may be able to establish in arbitration she did in fact respond within the time required).

So both bodies sometimes analyze umpire or arbitration precedents.

Hall v Local 735, 4 PRB 263, 267 (1984),

Humphrey v Ford Department, 5 PRB 285, 289-91 (1987),

Frolichman v Ford Department, 6 PRB 382, 385-86 (1992),

Vogen v Local 900 I, 9 PRB 614, 621-22 (1998), later decision 9 PRB 624 (2000), reconsideration denied (7/19/00),

Grant v GM Department I, 9 PRB 5, 13-14, 17 (1995), supplemental decision 9 PRB 20 (1996),

Vogen v Local 900 I, 9 PRB 614, 622 (1998) (though nurse clinician's excuse was arguably insufficient to show inability to work company did not point out insufficiency and give appellant an opportunity to supplement it with further evidence as it should have according to arbitration precedent),

Hunt v Local 435, 10 PRB 141, 147 (1998) ("Umpire precedent is binding on both the Employer and the Union."),

Hurd v Aerospace Department, 11 PRB 297, 301-02 (2001),

Davis v UAW, 11 PRB 348, 350 (2001),

Acton v GM Department, 11 PRB 362, 366 (2003),

Shepard v Local 174, PRB Case 1495 (5/13/05), p 8,

Smith v Region 4, PRB Case 1537 (9/27/06), pp 7-8 (prior arbitration precedents hold that the contract language does not protect members for filing workers comp, OSHA, and EEOC claims, and that a high standard of proof exists to show such acts motivated her discharge);

compare Hopkins v Local 730, 1 PRB 477, 480 (1969) (in pre-1980 grievance appeal PRB declines to analyze arbitration precedents),

Lacey v Local 7777, PRB Case 1577 (1/24/08), p 5 ("The arbitrators who previously addressed this issue apparently felt that the Casino's application of the variance policy was reasonable."),

Neely v Region 3, PRB Case 1601, pp 15-17 (4/21/09);

Gustafson v Local 865, CAC, session 11/81,

Discussion of arbitrators' rules for deciding grievances is beyond the scope of this manual. For extended research I refer you to the handbook and to the sources it cites. These may be available for review at your local; if not, ask local officers or committeepersons to help you find them.

The handbook lists some general principles arbitrators go by. Except where noted, the following are my paraphrases not quotes:

• "Significantly arbitrators interpret large formal contracts such as General Motors, Ford, Chrysler, and other large companies more stringently. That is, an arbitrator does not permit customs and practices, or 'filling in gaps.' An arbitrator holds the parties to the language of larger formal contracts."
• "Most [UAW contracts] are smaller incomplete contracts. Arbitrators apply a different 'brand of justice' in the interpretation of smaller, incomplete contracts. Arbitrators 'round-out' contracts by considering practiced conditions of employment and working conditions as part of the parties contract. Arbitrators are prone to provide the same measure of Union rights and security under smaller incomplete contracts as larger complete contracts."
• An arbitrator may not add to, subtract from, or otherwise amend the contract.
• Unclear ambiguous language -- arbitrators only have the authority to interpret unclear terms.
• "Estoppel" -- a party that does not enforce a right can waive it.
• Customs and practices -- unclear terms are interpreted by the way they are applied. Practices become part of smaller informal contracts.
• Specific terms and general terms -- specific language which modifies, clarifies, or interprets other general terms is the controlling language.
• Due process -- grievants may be disciplined only after they have been charged and given the chance to respond.
• Reasonable and fair rules -- an employer may not set rules for rules' sake; they must be related to efficient, safe, and orderly operation.
• Off-duty conduct -- employer's rules should not reach into the private lives of workers.

Occasionally the PRB too mentions a general arbitration principle. Some follow:

• To sustain a discharge a company need prove its case only by a preponderance of the evidence.

Sasaki v GM Department, 10 PRB 548, 553 (1999).

• A local agreement may not conflict with a national agreement.

Willbanks v Local 599, 10 PRB 180, 183 (1998),

Strohmeyer v GM Department, PRB Cases 1434 and 1439 (12/22/03), p 21 (individual members of management and union have no authority to waive provisions of national agreement).

• Unless renegotiated, umpire or arbitrator decisions establish binding precedents; settlements do not.

Handbook, pp 65, 68;

Jackson v Chrysler Department, 8 PRB 479, 482 (1995) (umpire decisions),

Tasker v GM Department, 8 PRB 484, 490 (1995) (umpire decisions),

Broughton v Local 659, 9 PRB 362, 367 (1997) (settlements, umpire decisions),

Barnes v TOP Department, 9 PRB 570, 573 (1997) (renegotiated arbitration decision),

Miller v Ford Department, PRB Case 1427 (3/19/03), p 6 (given result in relatively recent arbitration decision union had rational basis);

but see Handbook, p 65 (distinguishing between withdrawing a grievance, which results in a precedent, and withdrawing it "without prejudice" ("WWP"), which does not).

• It is permissible for a company and union to mutually misread or mutually correct a mistake in a contract or its administration.

Farrell v Local 1929, 6 PRB 424, 430 (1992),

Hollowell v Local 823, 8 PRB 571, 575 (1995),

Clark v Local 686, 10 PRB 318, 321 (1999),

Dillon v Local 735, 11 PRB 222, 224 (2001) ("Dillon relies on a literal reading of Paragraph (21) of the UAW/GM National Agreement to support his position."),

Chismar v Local 662, 11 PRB 242, 244-45 (2001),

Harmon v Region 1A, PRB Case 1539 (9/27/06), p 7 (company's mistake in seniority list would not bind the parties to continue it once they concluded they had made an error).

• Factual determinations made in courts or unemployment proceedings are not binding on arbitrators.

Stone v Region 1B, 5 PRB 16, 18 (1985),

Woods v Local 863, 5 PRB 422, 425 (1987),

Zepplin v Local 974, 6 PRB 477, 487 (1993) (concurring),

Baker-Williams v Region 3, 10 PRB 511, 517 (2000) (contrary to unemployment commission, there is no evidence that company was informed timely of appellant's appointment for re-evaluation by doctor),

Addison v Region 8, PRB Case 1600 (12/16/08), pp 4-5, 15 (despite finding of unemployment judge that evidence was insufficient to establish wilful misconduct, PRB holds appellant's failure to keep himself informed about company rules could be said to have amounted to defiance of those rules);

but see Grant v GM Department I, 9 PRB 5, 14 (1995) (testimony developed in unemployment hearing can be used to impeach witnesses in arbitration), supplemental decision 9 PRB 20 (1996),

Morris v Local 1853, 9 PRB 213, 221-23 (1996) (no mention of knife threat incident by company in unemployment proceedings supports supports inference incident was not a basis for discharge, local did not investigate evidence favoring appellant that he produced at unemployment hearing),

Taylor v Local 1853, 10 PRB 10, 17, 20 n 22 (2001) (company had been unable to sustain claim in unemployment proceedings, though unemployment decisions are not dispositive of evidentiary issues they may be of substantial probative value).

• If discipline is not grieved at the time it occurs, it stays on your record and can be used to build a case for more severe discipline on a later occasion.

Harrell v Local 842, 3 PRB 299, 301 (1982),

Sparrow v Local 1250, PRB Case 1457 (2/23/04), pp 2, 9-11.

• During the grievance procedure the company may not shift the reason it gives for an action it took.

Morris v Local 1853, 9 PRB 213, 220-24 (1996) (no mention of knife threat incident on company exit interview summary or in unemployment proceedings, unspecific and non-contemporaneous witness statements concerning knife incident),

Vogen v Local 900, 9 PRB 614, 622 (1998), later decision 9 PRB 624 (2000), reconsideration denied (7/19/00) ("[I]n the event that the Company attempts to shift the basis for the discharge of Vogen from a three day quit to some other reason, [the union] shall object."),

Morris v Local 1853, 9 PRB 225, 237-40 (1999) (union was unaware of PRB concern whether knife incident was actually a company basis for terminating appellant and whether management's evidence was authentic, union did not attempt to exclude knife incident testimony from the hearing);

but see Keith v Local 524, PRB Case 1458 (2/23/04), pp 1, 5, 8 (disagreeing with IEB, PRB says company may add reason for discharge at fourth step of grievance procedure),

Lombard v UAW, PRB Case 1525 (11/15/06), reconsideration denied (1/30/07), original decision pp 1, 13, reconsideration p 2 (UAW rationally declined to arbitrate grievance of member fired for fighting, where evidence showed argument was instigated by the foreman, and it involved only angry talk and not violence).

• The existence of a technical defect in the documents related to disciplinary action would not alter the merits of a grievance protesting the assessment of discipline.

Helton v National Heavy Truck Department, PRB Case 1541 (10/26/06), p 6 (management cited wrong shop rule),

Hulme v Northwest Local 163, PRB Case 1588 (6/10/08), p 11 (management named wrong person as appellant's supervisor).

• A company's failure to produce records which appellant says would exonerate him should be construed in appellant's favor.

Addison v Region 8, PRB Case 1600 (12/16/08), p 12.

• Unlike in traditional discipline grievances where it is the company which has the burden of proof, where the company has sent the member a letter saying either to report for work or provide a satisfactory reason for absence, the union has the burden to show either that the member either did report or that it was impossible for the member to do so.

Baker-Williams v Region 3, 10 PRB 511, 516 (2000).

• An employee guility of falsifying an employment application may be discharged within one year after commission of the offense. He or she may not be fired thereafter for that offense alone, even though the company did not learn of the fraud until later.

Frolichman v Ford Department, 6 PRB 382, 385-86 (1992).

What union reps do

What should you and your local expect of stewards and committeepersons? PRB decisions commonly cite UAW grievance materials as authoritative.

James v Region 5, 3 PRB 385, 390-92 (1982) (PRB grants grievance appeal partially because union rep did not follow admonition of handbook),

Taylor v Local 1853, 10 PRB 10, 17 (2001) (PRB cites UAW Grievance Handlers Handbook);

but see Clark v Local 686, 10 PRB 318, 322 (1999) (PRB discounts language in UAW Contract Administration Manual as being "nothing more than the opinion of the author of the Manual").

My pocket guide states the duties. A good grievance handler must:

• keep a complete record of all workers under their jurisdiction, including their names, addresses, phone numbers, classifications, seniority, and wage rates,
• know the contract, particularly clauses on seniority, grievance procedure, wages and classifications, and all sections pertaining to disciplinary action,
• know the workers' rights under federal and state labor laws,
• know the local bylaws and the constitution,
• attend meetings and encourage all other workers to attend,
• attend union education classes and share the knowledge with workers,
• strive to keep the workplace free from all health and safety hazards,
• keep bulletin boards and information racks timely,
• check dues standing of all members in the department/jurisdiction,
• eliminate phony grievances,
• distribute union information and literature to all members under their jurisdiction,
• hold regular meetings with members to keep them informed,
• not assume responsibilities of management,
• not pass the buck or make false promises to workers,
• not discriminate or play politics with the grievance procedure.

Pocket guide, pp 46-47;

compare Franks v UAW, PRB Case 1520 (12/20/05) p 12-13 ("There was an extraordinary amount of confusion regarding the collection of dues on behalf of Local Union 7777 immediately following the organization of this unit by the UAW.... [T]he executive officers of the newly established Local did not know.... The International Representatives assisting the Local had no easy solutions to offer, however. They were inexperienced with the type of business involved, and the Casinos were not cooperating with the newly elected officials.").

Regarding grievances, the pocket guide is more specific. The following are not quotations, but my summary of what look to be the main points of the many cited pages. Refer to the actual pocket guide for authoritative advice. A rep should:

• Have an awareness of contractual benefits plans and health-and-safety provisions, and refer specific problems to designated local reps.
• Strive to resolve problems before they become grievances.
• Listen carefully to the worker's version of a situation, and ask questions.
• Investigate all the facts because all are important, not just those that support the case. The more background information, the better.
• Investigate and dig up proof. Double-check the issues of who, what, when, where, and why. Assemble concrete evidence such as doctor's certificates and employer records.
• Write up the facts, in specific detail, preferably on a form.
• Know the precise requirements of the contract and follow them.
• Study contract interpretations.
• Check past practices and workplace rules.
• Be prepared to show workers the contract language, so they may refer to it in their own copy of the agreement.
• Ask for advice and get information on past practices and interpretations from other grievance-handlers or those with greater experience.
• After careful thought and study decide whether you can solve a problem. Decide on the merits. Sort out any that lack sufficient grounds such that you cannot resolve it regardless of what you do. If it is a grievance get ready to win it, and if not tell the worker why.
• Watch the time limits.
• Write the grievance, including a protest, charge, demand or request, and proper signatures of yourself and the worker.
• Be specific in the request. Ask for a definite type of action which would remove the real cause of the grievance and for full redress, such as backpay for hardship imposed on the worker.
• Refer grievances quickly, in a prompt and timely manner.
• Calendar the grievance, noting when an answer is due.
• Inform the grievant of the status of the grievance, even if there is no answer yet.
• Try to develop answers to the arguments management is most likely to use.
• Know the supervisor you are dealing with.
• Don't guess and don't bluff with management.
• Be firm and courteous, and don't lose your temper.
• Don't argue with another union rep in front of management.
• Avoid making deals by trading one grievance to win another.
• Drive for an immediate settlement whenever possible, but avoid getting a quick "no."
• Don't continue to argue if management grants your point.
• Prepare a brief.
• Keep files on past cases for reference in future cases, and for recommending changes in the next contract.
• Brief your replacement.

Pocket guide, pp 3-9, 13-46.

As noted elsewhere, review of the duty of fair representation imposed by external law is beyond the scope of this manual. However the pocket guide and handbook note and comment at some length on the duty, quoting from a 1997 administrative letter.

Pocket guide, pp 164-74,

Handbook, pp 125-28,

Grievance Handling and the Union's Duty of Fair Representation, administrative letter, volume 46 # 3 (5/6/97).

In 2008 the UAW updated the 1997 letter on the duty of fair representation.

Grievance Handling and the Union's Duty of Fair Representation, administrative letter, volume 54 # 4 (8/12/08).

The 2008 version of the letter is not in the somewhat-dated versions of the UAW's guides and handbooks, noted elsewhere, that I have. The following is taken from the 2008 version of the letter.

It deserves attention. It repeats many of the pointers noted above, and adds some. They are puzzling:

• "[The following is an example] of conduct which probably would not be found violative of the Union's duty of fair representation.... The Chairperson of the grievance committee honestly, but mistakenly, believes that the employer has not violated the contract and persuades the committee to withdraw the grievance."

  But in nine decisions the PRB held the opposite. It reinstated grievances the union honestly but mistakenly believed would be lost.

  Grievance Handling and the Union's Duty of Fair Representation, administrative letter, volume 54 # 4 (8/12/08), p 2,

  pocket guide, p 168;

  Resnick, Drake, Humphrey, Grant, Testerman, Vogen, Acton, Parden, Neely, described elsewhere.

  Since 1992 the CAC has reversed many more.

• There is a "Guidelines" section, headed by a paragraph saying that the pointers are not required by (external) law or by the constitution. One pointer says "if there are factual disputes in a given case the grievance handler should accept the grievant's version of the facts, if credible."

  In eight decisions the PRB held this it is not just good advice, but a UAW requirement, to arbitrate discharges if the member has high seniority and the claim is tenable. In the second-to-last last one it added the union should have accepted the member's version of the facts.

  Grievance Handling and the Union's Duty of Fair Representation, administrative letter, volume 54 # 4 (8/12/08), p 3,

  pocket guide, p 170,

  James, Drake, George, Humphrey, Peterson, Burdette, Acton, Parden, described elsewhere.

• The same pointer says "In deciding whether to arbitrate a discharge grievance, two important factors to consider are the grievant's seniority level and work record...."

  In a discharge, the most important question is whether the employer had cause for the separation, "cause" or "just cause" being the criterion most contracts use. The member's seniority can also be a proper consideration, as well as his or her disciplinary record, particularly if the member is working under a last-chance agreement. But "work record"? In a promotion grievance, that could be proper, because "experience" or "merit, ability, and capacity" are often contractual factors. But not in a discharge grievance. A discharge implies the member was somehow at fault. Besides, a member's "work record" is a slippery concept, laden with the potential for management favoritism.

• In the same "Guidelines" section, a pointer says, in sum, that if the grievant is a personal, political, or ideological opponent of a union rep it is better for another rep to process the grievance when possible. The same goes for a supervisor if the grievance involves a personal dispute between himself or herself and the member. If necessary the union should process the grievance to a higher step so a different management person can respond.

  There is no PRB decision on point, so the issue may not be important. My own view is this should be thought of as a requirement, not just good advice.

  Grievance Handling and the Union's Duty of Fair Representation, administrative letter, volume 54 # 4 (8/12/08), p 3,

  pocket guide, pp 171-72;

  compare Nafus v Region 9, PRB Case 1531 (4/12/06), p 4 n 12, 7 (fired non-member of union was represented properly where union had secured his reinstatement from earlier discharge for altercation through arbitration, but non-member would not comply with reinstatement condition requiring anger management treatment, was charged with repeating conduct for which he was fired the first time, declared he would not curb his expression, and continued to vent anger at union representatives, thus raising reasonable doubts as to his ability to present a case as a witness to an arbitrator),

  Phelps v Local 1292, PRB Case 1614 (4/22/09), p 10 ("The fact that Phelps may have behaved in a way that would justify hostility does not constitute evidence that hostility influenced the settlement of his grievance. Committeeperson Bean's handling of Phelps' disciplinary grievance demonstrates that he did not allow past differences to influence his responsibilities with respect to the processing of grievances").

• Most importantly for this manual, nothing in the letter tells reps, when a member asks what can be done after a grievance is withdrawn, to give an explanation of the appeal procedures and time limits of the UAW constitution. In contrast, the prior version of this letter, written in 1997, said the member should be directed to the appeal processes of article 33, and told they have to be exhausted before the union can be sued.

  Grievance Handling and the Union's Duty of Fair Representation, administrative letter, volume 46 # 3 (5/6/97) ("If a grievant asks about his/her recourse after a grievance is withdrawn, he/she should be referred to the UAW remedies or given a copy of the UAW Constitution and told to examine it. In general, UAW remedies under Article 33 must be exhausted before a grievant can sue the Union.").

• A pointer says a union rep "should consider the facts surrounding a grievance to be confidential information to be shared only on a 'need-to-know' basis." This is a peculiar formulation. I'm not sure what to make of it. Traditionally in a union an injury to one is an injury to all. See my discussion of "standing" for appeal-filing, elsewhere.

On other pages the guide adds that reps are to orient new members and give them a contract, educate members and stimulate union participation, attend and remind other members about meetings, classes, and special union events, engage and encourage others to engage in political and V-CAP activity, and refer out-of-workplace problems to counselors.

Pocket guide, pp 48-50, 173.

Other sections cover strike education and assistance,

Pocket guide, pp 51-57.

work standards,

Pocket guide, pp 57-63.

substance abuse,

Pocket guide, pp 156-64.

elimination of workplace sexual harassment,

Pocket guide, pp 174-84.

what are called "Weingarten" rights (named for a famous case in labor law), which are rules governing the whether the employer must summon a steward during investigations of workers,

Pocket guide, pp 82-95.

UAW departments, and

Pocket guide, pp 63-67.

federal laws and agencies.

Pocket guide, pp 68-82, 96-155, 185-95.

It is a good idea for a local to stay in touch with members who have pending grievances.

Resnick v Local 906, 3 PRB 221, 228 (1981) (failure of local to respond at all to grievant's requests as to the status of his grievance casts serious doubt over its claim that it presented the grievance properly),

Smith v Local 699, 6 PRB 168, 185 (1991) (dissent) (criticizing total absence of communication between union and appellants between umpire decision and implementation).

But ordinarily the union need not consult with a grievant respecting a decision not to arbitrate. It can settle on terms unacceptable to the grievant. It can even refuse a grievant's request to drop a grievance.

Finally, the most pertinent statement made by the Committeeman in his ... letter to the Appellant was that since he had been directed to withdraw the grievance, he did because he apparently came to the conclusion that "I can't make someone pursue a grievance." The Duty of Fair Representatation does not endow the grievant with rights to withdraw [the grievance] or demand its protraction in the grievance procedure. Once reduced to writing by the Union, the grievance becomes the exclusive property of the Union unencumbered by the grievant's wishes.

...

We credit the Appellant, not the Committeeman, on the question of whether or not the Appellant actually asked for his grievance to be withdrawn. We find he did not. Even if the Appellant had asked, we hold, in the particular circumstances of this case, that the Committeeman should have taken the discharge grievance to the next step of the grievance procedure.

Smith v Local 262, IEB Decision (undated, some time in 2002), pp 8-9 (emphasis in original);

See also Strong v Local 805, 1 PRB 620, 623 (1971) (union is not required to accede to every demand of every employee for a time study or to process to arbitration every grievance which an employee may file),

Badura v Local 93, 2 PRB 173, 182 (1976) (no duty to consult re decision not to arbitrate),

Morris v Local 1853, 9 PRB 225, 237 (1999) (fact that union and grievant disagree on settlement of grievance does not give rise to an appeal),

Vogen v Local 900, 9 PRB 624, 628 (2000), reconsideration denied (7/19/00) ("[O]nce a settlement of the grievance was reached it became final and binding on all parties [footnote omitted]."),

McAuley v GM Department, 11 PRB 474, 479 (2003) (union can settle on terms not acceptable to aggrieved),

Moscato v Ford Department, PRB Case 1483 (10/26/04), p 8 (union not obliged to obtain grievant's permission to negotiate settlement of grievances);

but see George v Region 2A, 5 PRB 204, 210 (1987) (remand for additional IEB investigation ordered, after which UAW ordered to meet with appellant and her attorney to determine whether grievance should proceed to arbitration),

McAuley v GM Department, 11 PRB 474, 481 (2003) (not irrational to settle discharge grievance by allowing member to be reinstated for the sole purpose of applying for total and permanent disability),

Harris v Local 2320, 9 PRB 276, 285 (1996) (if appellant is right that there was no meeting of the minds of the employer, the union, and the appellant as to settlement of the grievance, then at least arguably the grievance is still pending),

Keevis v Local 235, 11 PRB 12, 14 (2000) ("Such contractual ambiguities offer the opportunity for compromise [payment of $250], and this is what has happened here."),

Helton v National Heavy Truck Department, PRB Case 1541 (10/26/06), p 5 (though management argued that the union had made a settlement regarding the layoffs before filing the grievance, the union did not treat it as having been resolved, and processed it to the fourth step),

Polansky v DaimlerChrysler Department, PRB Case 1552 (1/26/07), p 8 ("It was unfortunate that Polansky refused to take advantage of the settlement negotiated on his behalf...."),

Bertone v GM Department, PRB Case 1556 (2/21/07), p 9 ("Under the circumstances, the Union achieved an excellent settlement for Bertone that preserved his job and his seniority. It is very unfortuante that Bertone did not take advantage of this settlement.").

Delay in grievance-processing is often a concern for members. Sometimes this is because the union has missed a deadline, but not always. The UAW does not always include members in discussion of grievances. The PRB has shown some interest in the issue of tardy grievance-processing, but to date it has not upheld an appeal solely on this basis.

Pocket guide, pp 42, 44-45, 171, 173 (union should move quickly, grievant should be told status of grievance),

Handbook, p 127;

Marshall v Local 1364, 1 PRB 522 (1969) (committeeman forgot to appeal grievance timely to the next step),

Resnick v Local 906, 3 PRB 221, 228 (1981) (delay one factor in upholding appeal),

Merrow v Region 1A, 6 PRB 125, 129-30 (1991) (despite PRB's very fundamental concern that undue delay can constitute breach of duty union performed duty in this appeal),

Smith v Local 699, 6 PRB 168, 185 n 16 (1991) (dissent) (noting total absence of communication between union and grievants),

Rowser v Local 909, 8 PRB 57, 63 (1993) (surface plausibility in appellant's claim that six-year delay in resolving grievance is itself irrational, but PRB unwilling to hold for appellants on this issue alone),

Ayres v Local 1112, 10 PRB 126, 128 (1998) (it can take a year or more to move a grievance to the umpire's docket to be heard),

Brown v Local 325, 10 PRB 130, 135 (1998) (it is not UAW policy to include grievants in second- or third-step meetings),

Bladen v GM Department, 11 PRB 226, 228 (2001) (20-month period between discharge and withdrawal of grievance explained by numerous efforts of union to persuade company to give appellant, a 29-year employee, a second chance),

Zavadil v Ford Department, PRB Case 1407 (3/19/03) (union did not grieve though aware of violation),

Brown v Region 8, PRB Case 1425 (3/24/03) (member did not notify union of termination),

Miller v Ford Department, PRB Case 1427 (3/19/03) (union had responsibility to ascertain if other members shared problem of other member who settled),

Polansky v DaimlerChrysler Department, PRB Case 1552 (1/26/07), p 8 (reason grievance took so long to settle was appellant's admission of wrongdoing and his refusal to cooperate with company's investigation of fellow member; according delay was an appropriate union tactic),

Francis v GM Department, PRB Case 1587 (10/29/08), p 22 (though troubling grievance-processing delay unrelated to merits of grievance resulted in taking 18 months to resolve grievance for job but no backpay, this was not due to deliberate intent to impose disproportinate penalty on appellant);

Poole v Local 843, CAC, session 11/81 (appellant did not observe time limit of 15 calendar days from when he had knowledge of basis for grievance to file it);

administrative letter, volume 54 # 4 (8/12/08) ("We advise that all grievances, and especially important grievances, such as long layoffs, discharges, etc., be investigated promptly and carefully....").

The UAW may compromise a grievance where the company and union have differing interpretations of the contract.

Early v Region 5, 4 PRB 315, 318 (1984) ("Not every grievance can or should be arbitrated simply because it has some merit.... Ultimately, the issue was settled on the basis of a compromise by both sides. Certainly such a settlement, when there is a genuine dispute over the meaning and application of collective bargaining agreement language, is not devoid of any rationl basis.").

There is no right to vote on grievance settlements.

Hairston appealing Tackett v Local 1623, 10 PRB 191, 197 (1998).

The union can settle on terms inconsistent with the contract, but only if the terms are superior to the contract. If the terms are inferior (and this will be a judgment call in many cases), the union has failed to protect the members' rights. The president explained the difference once. This was in a reconsideration request of a PRB decision holding the union responsible for dropping a meritorious grievance of a member fired from Ford. The president explained how that had happened by comparing the bargaining process to the arbitration/umpire process. In bargaining, he said:

[w]e are not having a "trial" about anything. More often than not, the Union gets results in that bargaining which, were the facts and contract rights formally "adjudicated," we would simply lose. Sometimes, as the [PRB] found in the instant case, it works the other way, i.e. Ford wins more by bargaining.

Vogen v Local 900 II, 9 PRB 624 (5/15/98), reconsideration denied (7/19/00), letter Stephen Yokich to PRB, 6/8/98, record pp 129-30;

see also Hulme v Local 174, 9 PRB 608, 613 n 6 (1998) ("It is apparent that, since it has one Committeeperson-at-Large, the Delphi Unit has one more District than it is contractually entitled to. It has been our experience that Local Unions are occasionally able to negotiate locally for more District representatives than specified by the Agreement."),

Morris v Local 1853, 9 PRB 225, 241, 244 (1999) (job offer obtained at different plant for discharged member despite that union had lost arbitration),

Tackett v Local 735, 10 PRB 82, 86 (1998) ("The settlement of his grievance ultimately resulted in his receiving a 1985 seniority date, or considerably more than that to which he was contractually entitled."),

Holet v Local 467, 10 PRB 538, 540-41 (1999) (appellant had not completed training which would have entitled him to share equally in overtime; union was nevertheless able to get certain concessions from management in his favor and an umpire could not have provided him with more),

Gaul v Local 488, 11 PRB 202, 207 (2001) (there being no contractual support for appellants' grievance, and the union not having the option of striking locally as it did successfully in 1998, the union had no leverage and had to withdraw the grievance protesting implementation of a special attrition plan),

Falconer v Region 3, PRB Case 1410 (7/23/03), p 7 (despite lack of contractual merit the union nevertheless pressed the fired member's grievances and achieved conditional reinstatement),

Sparrow v Local 1250, PRB Case 1457 (2/23/04), pp 9-10 (union got member back to work without backpay though company's discharge decision was not inconsistent with the contract),

Pappas v Region 1A, PRB Case 1602 (10/28/08), pp 5-7 ("Pappas was fortunate that the Union managed to negotiate his reinstatement, because the Company could have insisted that his seniority had been broken when he failed to report to work while he was in the Oakland County Jail").

Some decisions discuss the possibility or efficacy of re-filing a previously-withdrawn grievance.

Local 699, 3 PRB 302, 303 (1982) (IEB orders that grievance which shop chair had refused to write be filed),

Notchick v Local 2209, 11 PRB 255, 259 (2001) (re-filing a withdrawn grievance does not re-start time limits for appeal),

Campbell v Aerospace Department, PRB Case 1411 (12/3/02), p 6 (appellant may not re-litigate matter already decided),

Espinosa v Local 719, PRB Case 1418 (12/18/02), p 6 (appellant may not challenge agreement by filing grievance 18 months after the fact);

but see Pfeiffer v Local 556, 1 PRB 485, 487, 492 (1968) (IEB and PRB order local to file new grievance and make appellant whole).

The UAW seeks only contractual remedies. As a matter of policy it does does not take equitable claims to an Umpire.

Avery v GM Department, PRB Case 1522 (2/16/06), pp 19-20 (though appellants justifiably relied to their detriment on job offers made by company representative, contract did not provide remedy for them and union was justified in withdrawing grievance; the damages that appellants seek are in the nature of a tort claim that must be pursued in other venues);

compare Sonnier v UAW, PRB Case 1548 II (7/19/07), pp 6-8, 14-15 (because of nearly-four-year delay occasioned partially by unreasonable behavior of appellants' counsel, "equity favors a dismissal" of charge of unbecoming conduct which otherwise would have been referred to a trial committee).

External-law grievances

The pocket guide specifies several categories of grievance violation:

• contracts and supplementary agreements,
• state and federal labor laws, health and safety regulations, and NLRB rulings,
• arbitration or umpire decisions,
• past practice and policies, and
• the employer's own regulations.

The handbook repeats the pocket guide's second category about external laws.

Handbook, p 27 ("Why... is this a grievance? Or, why can it be a grievance? The clause in the contract ... or the law violated ... or the harm done to the members should be spelled out ... so you can ask for the remedy!") (ellipses in original),

Handbook, p 101, glossary ("Grievance .... A dispute or a difference between the company and the worker, usually a violation of the union contract, a violation of a law affecting labor and/or unjust, unequal treatment of a worker by management.") (ellipsis in original).

The pocket guide and handbook are filled with references to labor laws, safety laws, wage laws, discrimination laws, disability laws, unemployment laws, plant closing laws, workers compensation laws, and other laws.

PRB decisions commonly cite these UAW grievance manuals as authoritative.

James v Region 5, 3 PRB 385, 390-92 (1982),

but see Clark v Local 686, 10 PRB 318, 322 (1999) (PRB discounts language in UAW Contract Administration Manual as being "nothing more than the opinion of the author of the Manual").

But a PRB decision in the 1995 Gray v Local 6000 decision, undercuts the external-law category. It upholds withdrawing a grievance which was based solely on a Michigan statute.

The statute established an employment right to 240 days notice in the closing of a state-owned mental health facility. The purpose of the 240-day law was to allow employees to consider early-retirement options. The contract itself did not require notice. After consulting with the UAW legal department the rep withdrew the grievance from arbitration.

Affirming the IEB, the PRB held: "Without the ability to establish that there was a violation of the contract, there was no basis for proceeding to arbitration with appellants' claim." It accused the appellants of "mudd[ying] the waters somewhat by juxtaposing" their contractual and statutory claims. Appellants who were damaged by the lack of notice might have valid rights in court, the PRB concluded, but not in arbitration.

Gray v Local 6000, 9 PRB 31, 34 (1995).

There may be good reason to file law-based grievances as the pocket guide and handbook suggest. But if those grievances will be weak because of thinking like this, union reps should be told that. On one page the handbook does hint to this effect. But the page could be overlooked by a rep pressed for time, and the subject needs to be cleared of ambiguity. Gray should be either embraced or overruled.

Handbook, p 66 ("[S]ome contracts do not allow an arbitrator to decide health and safety issues.");

compare Soncrant v Local 1889, 9 PRB 538, 541 (1997) (PRB asserts decision whether to arbitrate a grievance is not a political question or a matter of rallying troops to a cause).

Individual/group/policy grievances

The UAW also categorizes grievances on the basis of number or type of grievant. The categories are (1) individual grievances, (2) group grievances,

Hein appealing Baudoux v Region 1, 5 PRB 703, 710 (1989) (allocation of settlement in class grievance),

Siwek v GM Department, PRB Case 1595 (10/30/08), pp 7-8 (decision to withdraw group grievance protesting company's decision to have vendors do their own quality control was not irrational; vendor quality inspection was not historic bargaining unit work; settlement was part of protracted negotiation of all outstanding grievances from this location).

and (3) policy grievances.

The first two are self-explanatory. According to the pocket guide and handbook, the third is broad and loosely defined. Policy grievances cover several departments, the whole plant, or inter-plant situations. They address new jobs, new classifications, new wage rates, longstanding past practices, union practices, mutual understandings, working conditions or practices, or company concessions. They tend to become the responsibility of higher-level union reps.

Pocket guide, pp 10-11;

Handbook, pp 18-19;

but see Kibler v Local 14, 3 PRB 306, 310 (1981) (defining a policy grievance more narrowly as one that "seek[s] to challenge representation procedures agreed to by plant management and representatives [of the union].").

In settlements, trading of one individual grievance for another is discouraged. But evaluation and settlement of multiple individual grievances in a group is ok if they arise from the same grievant or the same situation.

Shay v Local 163, 10 PRB 555, 557-58 (2000) (package settlement of appellants' multiple grievances was permissible without evaluation of each one individually),

Siwek v GM Department, PRB Case 1595 (10/30/08), pp 7-8 (settlement was part of protracted negotiation of all outstanding grievances from this location).

The appellee and the time limit in a grievance appeal

The time limits are different in grievance appeals, depending on whether you are protesting a settlement made at the local level (60 days), or at a higher level (30 days). Accordingly, before starting a grievance appeal it is important to identify who settled the grievance, as is discussed elsewhere.

Union role reversal in a grievance appeal

While your grievance is pending the union rep is your advocate. But suppose he or she settles or withdraws a discipline grievance, leaving some or all of the discipline intact, and suppose you appeal. In a 2010 decision the PRB noted the problem a rep can have:

It appears that Farris and Jones were somewhat uncomfortable with their role as defenders of the union's position when Hendley's appeal first reached the IEB level. It became apparent during our investigatory hearing that Farris and Jones did not clearly describe the results of their investigation during the first hearing conducted by [the IEB]. As a result the actual basis for [the local president's] conclusion that the grievance could not be successfully arbitrated did not come to light. After explaining that Hendley was not discharged for leaving the plant, but rather for misrepresenting his time on his time card, Chairperson Farris stated that he did not understand that he was supposed to volunteer that kind of information during the hearing conducted on behalf of the IEB. [footnote omitted] His reticence is understandable. When responding to an appeal challenging the union's handling of a grievance, representatives accustomed to acting as advocates for unit members are suddenly asked to justify the imposition of discipline; it is a difficult role reversal.

Hendley v Region 1, PRB Case 1628 (1/25/10), p 15.

What if you win a grievance appeal?

There are different remedies available, depending on whether a grievance appeal is won at the local level, or a higher level.

Grievances rationally

Pre-1980

Until 1980, unless the IEB itself had found the local improperly represented you, the PRB tested grievance appeals on a three-part standard. It had jurisdiction only if you had previously told the IEB with citation to specific facts that the union mishandled the grievance due to

• fraud,
• discrimination, or
• collusion with management.

As to "fraud" and "collusion", no decision that I can think of has found these occurred.

McNeal v Ford Department, 10 PRB 504, 508-09 (2000) (in face of appellant's argument that (a) union must have known of his seniority rights at the time and (b) union later recognized he was entitled to seniority at the time, fact that union committeeperson witnessed appellant's signature on a document, which said contrary to the contract that he would not gain seniority, does not establish collusion with management to defraud appellant of his proper seniority).

As to "discrimination":

Discrimination essentially is an act which either confers or denies particular privileges or rights on an individual or group of individuals arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privileges or rights granted or denied and between whom and those favored, or specifically not favored, no reasonable distinction can be found.

Strong v Local 805, 1 PRB 620, 622 (1971).

Note discrimination in this context is not limited to the types of discrimination listed in article 2 section 2 -- religion, race, creed, color, sex, political affiliation, nationality, age, disability, marital status, sexual orientation.

Pfeiffer v Local 556, 1 PRB 485, 489-90 (1968),

Berry v Local 600, 4 PRB 53, 57 (1983) (bargaining discrimination in favor of members in one classification who are numerically superior and have great political influence, against members in another clasification who are numerically inferior and have less political influence, would be invidious and remediable by the PRB; but the facts here do not show such discrimination because the disputed agreement is over 20 years old and members in the disfavored classification has less skill and less seniority),

Golden v UAW, 4 PRB 242, 244 (1984),

Benton v Local 1977, 5 PRB 52, 55-56 (1986) (claim of collusion to IEB must have cited specific evidence in support of claim to qualify for PRB jurisdiction),

The three-part standard was not significant. Only two PRB decisions before 1980 and two since then held that a grievance appeal did or might succeed under the pre-1980 standard.

Pfeiffer v Local 556, 1 PRB 485 (1968) (company denial of request to return early from leave of absence, local refused to arbitrate, PRB affirms IEB order to file new grievance and compensate member),

Marshall v Local 1364, 1 PRB 522, 527-28 (1969) (fitness to work after personal auto accident, negligently tardy grievance-processing, PRB permits appellant at his option to begin appeal after IEB gratuitously injected issue of appealability of grievance disposition into appeal about propriety of charges),

Badura v Local 93, 2 PRB 173, 183, 189-91 (1976) (PRB rejects broad sense of word "fraud" advocated by concurring opinion),

Benton v Local 1977, 5 PRB 52, 55-56 (1986) (remand to IEB with instructions to allow appellant to introduce evidence of collusion with management),

Zavadil v Ford Department, PRB Case 1407 (3/19/03) (committeepersons assisted company in blatant pregnancy discrimination);

see also Morris v Local 1853, 9 PRB 213, 220 (1996), quoting from Alspach v Local 977, 1 PRB 300 305 (1963) ("Applied particularly to labor relations [the term 'collusion'] carries an especially reprehensible connotation, for it implies a breach of the trust relationship which is created when an employee surrenders to a labor union his individual right in dealing with his employer concerning the terms and conditions of his employment. The allegation of collusion implies the perversion of the very purposes for which a labor union exists, namely the protection of the workers who comprise it. It is as serious a charge as can be leveled at a labor union. Within the trade union movement, it is the equivalent of treason in the national life. Charges of so serious a nature demand a correspondingly high standard of proof.");

compare Lorenz v Local 174, 1 PRB 133, 135 (1960) (in light of historic negotiated sex-segregated seniority categories, temporary out-of-class assignments of men into women's jobs were justified, unspecified non-discriminatory reasons may have underlain junior men working while senior women were laid off, appeal denied),

Dawkins v UAW, 2 PRB 296, 301 (1975) (local's own conclusion that its committeeman injured a member and it therefore owed him backpay was appropriate response to colorable claim timely advanced),

Berry v Local 600, 4 PRB 53, 57 (1983) (bargaining discrimination in favor of members in one classification who are numerically superior and have great political influence, against members in another clasification who are numerically inferior and have less political influence, would be invidious and remediable by the PRB; but the facts here do not show such discrimination because the disputed agreement is over 20 years old and members in the disfavored classification has less skill and less seniority),

Chamberlain v Local 652, 8 PRB 18, 20 (1993) (personal social relationship of protested member and management does not show collusion, where union took quick action to remedy situation when error was discovered),

Dickerson v UAW, 11 PRB 530, 535 (2002) ("Whether or not [union rep] Zurawski liked Dickerson is not germane to this appeal, for the fact remains that Dickerson repeatedly violated the terms of his last chance agreement...."),

Russell v Region 1A, 11 PRB 550, 554 (2002) (PRB rejects claim of hostility of union rep).

There is one pre-1980 grievance appeal where the PRB held itself not restricted by the three-part limitation. This was because the appeal came to it in an unusual posture. The IEB had upheld the member's appeal, saying the local's failure to arbitrate was wrongful and it owed the member backpay. On review, holding that the local was obliged to represent appellant "fairly and honestly," the PRB said evidence supported the IEB and left it at that.

Pfeiffer v Local 556, 1 PRB 485, 490-92 (1968) (IEB granted member's appeal and local appealed to PRB, PRB therefore was not bound by its usual jurisdictional limitation, evidence supported IEB finding that local should have arbitrated early-return-from-voluntary-leave grievance in light of wording of leave request, local's counsel believed that grievance had 50-50 chance of winning, appeal to IEB was timely, and appellant's dues delinquency at time of grievance and late notice of voluntary leave to local were irrelevant);

compare Taylor v Local 1853, 10 PRB 10, 10, 16 (2001) (though IEB found local liable, traditional PRB jurisdictional "rationality" limitation applied because the member not the local appealed),

Zavadil v Ford Department, PRB Case 1407 (3/19/03) (IEB denied pregnancy-discrimination grievance appeal, after receipt of PRB questions president reversed factual finding, president now said appellant's job was within medical restrictions, president also said local reps had assisted company in blatant discrimination by agreeing with management and told appellant nothing could be done and to go home and take care of her baby, company had lied in describing job's physical requirements in answer to grievance).

It is curious that so few pre-1980 appeals succeeded, because one of them, Marshall v Local 1364, said:

[P]roven negligence of this kind which demonstrably prejudices substantial interests of an employee in the bargaining unit could conceivably provide the basis for a claim for resultant damages.

...

[N]egligent conduct on the part of a steward in the processing of a grievance which results in prejudice to substantial interests of another may provide the basis for redress under the Constitution.

Marshall v Local 1364, 1 PRB 522, 527-28 (1969).

The appeal involved a committeeman who put a discharge grievance in his briefcase for two months and forgot it until after the time to take it to the next step. The grievance was later settled without backpay. Appellant Maewethers Marshall filed a charge against the committeeman. The PRB eventually upheld dismissal because mere negligence is an insufficient basis for a charge. But for procedural reasons it allowed Brother Marshall to start a late appeal of the grievance disposition.

PRB reports do not indicate that a new appeal by Marshall ever came back to it. Maybe he didn't file one, or maybe he did and it was resolved at the local, the IEB, or the CAC.

But seven years later in Badura v Local 93 a concurring opinion joined by three of the seven PRB members argued the union commits "fraud" when it cannot show a "rational basis" for failing to pursue the member's claim. This was in a grievance appeal lacking the clear-cut facts of Marshall.

Badura v Local 93, 2 PRB 173, 190 (1976) (concurring opinion).

Suppose Marshall's appeal had come back to the PRB. The insistent views expressed about a grievance idling in a briefcase make me wonder: Might one more PRB member have been convinced under a "rational basis" theory this was enough fraud that the PRB could have acted?

At any rate, echoing the Badura minority, in 1980 a fourth test was added which allowed PRB review of grievances if

• the disposition or handling was devoid of any rational basis.

Article 33 section 4(i).

The convention constitution committee chair explained to delegates in 1980 article 33 was being "completely" revised. The substantive changes were (1) to make it "easy to understand," (2) limit certain types of appeal such as procedural rulings of a meeting chair, and (3) expand PRB jurisdiction to cover grievance-handling where the handling was devoid of a rational basis. The chairman stated this would include the disposition of a grievance where there was no reason at all.

Proceedings, 26th constitutional convention (1980), pp 287-304 (debate on article 33).

Rational disposition and rational handling are two different duties.

Drake v Local 659, 4 PRB 84, 87 (1983).

They require the PRB to

examine whether there existed persuasive arguments which could have been advanced by the Union on the grievant's behalf.

Resnick v Local 906, 3 PRB 221, 228 (1981).

Note that, as the PRB explained in 2002,

the issue is not the reasonableness of the Union's decision, but whether that decision was devoid of any rational basis.

Smith v Region 3, 11 PRB 507, 510 (2002) (PRB's emphasis).

The PRB says the four-part standard now mirrors the duty of fair representation as developed in the courts.

Badura v Local 93, 2 PRB 173, 178-80 (1976) (IEB notes PRB jurisdiction is not defined in terms of a duty of fair representation, PRB compares its pre-1980 jurisdiction in grievance appeals to the duty or fair representation developed in the courts),

Stephens v Champion Department, 4 PRB 349, 354 (1985) (PRB-enforceable "duty of fair representation"),

Moran v Agricultural Implement Department, 6 PRB 303, 310 (1992) (in appeals which are similar to fair-representation court claims members should have available substantially all the remedies they would have in court),

Thompson v GM Department, 9 PRB 64, 73 (1996) (the Clayton doctrine),

Morris v Local 1853, 9 PRB 225, 240 (1999) PRB-enforced "duty of fair representation"),

Taylor v Local 1853, 10 PRB 10, 17 (2001) (PRB-enforced "duty of fair representation"),

Derian v Region 2B, PRB Case 1424 (4/2/03), p 7 (PRB-enforced "duty of fair representation").

The PRB-reviewable duty of rationality is no higher a standard than what the UAW imposes on itself, for instance in its handbook. In the past the handbook and pocket guide described the "duty of fair representation" not just as a duty imposed by external law but as a UAW principle:

Those duties are to be honest, to act in good faith, to be non-discriminatory, and to be informed and to have a rational basis for making a decision. In other words, the Union owes a duty of "fair representation" to all those in units which it represents.

James v Region 5, 3 PRB 385, 391 (1982) (quoting from then-current handbook),

Drake v Local 659, 4 PRB 84, 88 (1983) (PRB's standard is no higher than the UAW's, quoting from then-current handbook);

see also pocket guide (1988), p 6 ("You give fair representation -- because it is our union's policy, because it is the law, and because it is your obligation to the people with whom you work.").

The handbook and pocket guide quoted here are no longer the current versions. The current versions do discuss the duty of fair representation as a principle of external law and they urge reps to assume it. But they no longer describe it as a union principle.

Omissions are sometimes significant in the UAW.

Unit 1, Local 412, 2 PRB 251, 262 (1975) (when amending article 33 in 1959 to extend PRB jurisdiction over disputes arising under article 36 sections 9 and 10, omission of section 11 was "significant"),

Drake v Local 659, 4 PRB 84, 88 (1983) (omission of language in one paragraph of contract that is present in other paragraph of contract is one basis of reversal of IEB),

Wright v Local 1069, 5 PRB 775, 789 (1990) (omission of language in one paragraph of contract that is present in other paragraph of contract is one basis of reversal of IEB).

The change may signal a shift in UAW thinking. Perhaps the union means to emphasize there is an even higher standard than the recommendations of the handbook and pocket guide; perhaps this refers to the tougher standards of the IEB and CAC.

At any rate it is not useful or relevant for UAW appellate parties or decisionmakers to reference the phrase "duty of fair representation." Even though the PRB says it mirrors the courts' approach, rarely do its grievance appeal decisions cite or rely on court holdings.

But see Smith v Local 699, 6 PRB 168, 185 (1991) (dissent) ("internal appeals process ... is supposed to be fair to the Union members and serve as an antidote to litigation over the duty of fair representation."),

Moran v Agricultural Implement Department, 6 PRB 303, 310 (1992) (UAW's use of PRB decisions to defend members' duty-of-fair-representation claims in civil litigation implies an obligation on the PRB to insure that members who assert like claims to it have available substantially all the remedies which would be available to them in court),

Thompson v GM Department, 9 PRB 64, 76-77 (1996) (dissent) (1980 expansion of PRB jurisdiction over grievance appeals benefitted UAW which thereby received de facto insulation from fair representation suits filed by members in court),

Colley v Local 235, 11 PRB 235, 240 (2001) (in failure-to-install election case, claim for damages held untimely despite equally late claims in grievance appeals being held timely, because before a member can submit a grievance claim to a court he or she must first exhaust article 33 remedies).

A second curiosity of this discussion is why anyone would care whether the PRB has jurisdiction of the fourth test, given that the CAC already had jurisdiction of it and its jurisdiction courses beyond the fourth test anyway.

Pfeiffer v Local 556, 1 PRB 485, 489 (1968) (debate about PRB jurisdiction),

Battle v UAW, 1 PRB 606, 606 (1970) (parties stipulate that PRB not newly-formed CAC has jurisdiction in convention credential challenge),

Gally v UAW, 2 PRB 67, 67-69 (1973) (PRB not CAC decides appellants have right to have CAC review validity of selection of CAP council delegates, and hence validity of CAP council proceedings)

Badura v Local 93, 2 PRB 173 (1976) (debate about PRB jurisdiction).

Today

In any event, PRB reversals of IEB grievance decisions have increased since 1980. To the date of this release, the PRB has returned 20 appeals to the IEB under the new standard. There are too many lost appeals to list them all and summarize their reasoning. I find the most helpful way to explain the standard to members is to highlight the 20 wins. More detailed discussions on those that resulted in an award of damages are found elsewhere. A summary of appeals which the CAC reversed are found elsewhere.

Resnick v Local 906, 3 PRB 221, 227-29 (1981) (unreasonable delay in grievance-processing, several arguments might have persuaded arbitrator, union would not respond to member's requests for information about grievance, union sent notice of arbitration to wrong address, appellant's request for backpay deferred pending disposition of grievance by umpire),

James v Region 5, 3 PRB 385, 389-92 (1982) (sleeping on the job appears to have been a non-dischargeable first-time offense, member had high seniority, likely racially discriminatory motivation on part of person who blew the whistle on the member, PRB jurisdiction retained),

Drake v Local 659, 4 PRB 84, 86-89 (1983) (notice failed to state date by which member should report, member reported as soon as possible, notice was not received at home though people were there, contract language appears to require actual delivery not attempted delivery, other members fired under the same language were later reinstated including some who failed to report because of incapacitation due to alcoholism or jail, member had high seniority, PRB jurisdiction retained),

Hall v Local 735, 4 PRB 263, 266-67 (1984) (failure to contact member's doctor, failure to take umpire precedents into account),

George v Region 2A, 5 PRB 204, 209-10 (1987) (high-seniority employee who has consistently asserted innocence, no evidence in record directly linking appellant to receipt of stolen property, union made no attempt to contact and evaluate witnesses against appellant, PRB jurisdiction retained),

Humphrey v Ford Department, 5 PRB 285, 289-91 (1987) (high-seniority employee, company sent notice to address it had on file for appellant which was incorrect address, company sent most recent previous notice to appellant's correct address, umpire precedents relied on by union are distinguishable, issue might be one of first impression, burden of proof in termination is on employer, PRB jurisdiction retained),

Williams v Chrysler Department, 5 PRB 748, 753-55 (1990) (union should have considered appellant's argument that his absences should have been excludable by reason of his heart condition under company's chronic absenteeism program, appellant's explanation that he came forward with information about his heart condition late is plausible in light of statement by attendance counselor after learning of heart condition that nothing could be done to help appellant, appellant ordered to produce medical evidence and union ordered to evaluate it, PRB jurisdiction retained),

Peterson v TOP Department, 8 PRB 289 (1995) (high-seniority employee accused of serious acts including physical and sexual abuse of client's family which were also the basis of criminal charges against appellant, prosecutors likely advised client not to talk to union, appellant's lawyer did the same, union should have put the grievance in abeyance till the criminal case was disposed of which employer likely would have agreed to, instead it went ahead with grievance-processing and withdrew it believing it could not be won, two years later the court found the client not credible and acquitted appellant, there were big contradictions in client's account of the non-abuse charges, PRB jurisdiction retained),

Grant v GM Department I, 9 PRB 5, 12-15 (1995), supplemental decision 9 PRB 20 (1996) (umpire decisions cited by union are readily distinguishable though this is not alone sufficient to say the settlement was irrational, two key witnesses gave contradictory accounts in unemployment hearing, union did not contact appellant during lengthy delay in grievance-processing and therefore did not learn of developments in unemployment proceeding, remanded for arbitration absent settlement, 30-day delay ordered for implementation of decision to give appellant a chance to change his mind and agree to grievance settlement),

Testerman v Chrysler Department, 9 PRB 151, 157-60 (1996) (union interpreted language of chronic absentee procedure too narrowly, attendance council did not review the grievance as it should have, the procedure is primarily for rehabilitation not discipline, there was substantial evidence that appellant had improved his attendance, should have had some of his absences excused or excluded, and should not have been enrolled in the procedure at all),

Morris v Local 1853, 9 PRB 213, 220-24 (1996) (no mention of knife threat incident on company exit interview summary or in unemployment proceedings, unspecific and non-contemporaneous witness statements concerning knife incident, local did not investigate evidence favoring appellant that he produced at unemployment hearing about the knife incident, appellant was terminated before completing all six steps of attendance procedure, grievance ordered to arbitration absent settlement, PRB jurisdiction retained),

Morris v Local 1853, 9 PRB 225, 237-40 (1999) (grievance reinstated under article 33 differs from ordinary grievance in that umpire staff must address PRB concerns in the remand order, union did not present to arbitrator items requested by appellant and highlighted by PRB in previous decision, union was unaware of PRB concern whether knife incident was actually a company basis for terminating appellant and whether management's evidence was authentic, union did not attempt to exclude knife incident testimony from the hearing, union did not argue that company should have been required to complete entire six-step process before firing appellant, union did not understand prior PRB decision, union lacked legal evidentiary skills and should have sought counsel of its legal staff),

Vogen v Local 900 I, 9 PRB 614, 621-23 (1998) (regardless whether appellant was a probationary employee the contract provided him just-cause protection after 30 days, though sick and having a medical excuse in hand he went to company labor relations before his starting time to display the excuse to the clerk and obtain a call-in number at plant security, though the clerk was a bargaining unit member temporarily assigned to labor relations she was the company's agent and the company was bound by her advice, termination was for being a three-day quit, though nurse clinician's excuse was arguably insufficient to show inability to work company did not point out insufficiency and give appellant an opportunity to supplement it with further evidence as it should have according to arbitration precedent, remand for arbitration absent settlement, appellant's counsel to be permitted to participate in pre-arbitration negotiations and to participate in the arbitration in advisory capacity, at arbitration UAW is to advance each reason cited by PRB decision, if the company attempts to shift the basis for the discharge the UAW is to object),

Taylor v Local 1853, 10 PRB 10, 16-17 (2001) (union rep did not interview appellant fired for absenteeism, company had been unable to sustain its claim to unemployment agency that appellant had not called in an illness report, rep did not interview appellant's four witnesses, rep relied on false information),

Long v Local 22, 10 PRB 206 (1998), supplemental decision, 10 PRB 216, 218-21 (1999) (area hire grievance asserted that new employees were hired in 1987-91 while appellants were laid off and unaware of the right to have their names placed in the local area hire list, grievance withdrawn at the local level, appeal claims appellants were left out intentionally, IEB dismissed appeal on basis that seniority was only one factor in deciding whether to place someone from the list and in any event violations of the contract could not be the basis of backpay claims or retroactive adjustments, PRB notes that nevertheless a grievance can achieve review at the corporate and UAW level and this is what the appeal seeks, forms for electing to be placed on area hire list were not given to appellants at time of layoff, appellants' statistical evidence inferentially supports their claims, there is no evidence whether the parties' practice was to automatically place laid-off members on the list, PRB orders remand to determine whether appellants's name were on list, PRB jurisdiction retained, after meticulous investigation IEB determined without rebuttal from appellants there were no new hires during 1987-91 and that no one had been hired from the local area hire list out of line of seniority, in supplemental decision PRB holds that though 1987-91 local area hire lists are now lost it is unlikely appellants were deliberately left off and none of the employees who appellants claimed were recalled out of line of seniority were in fact improperly recalled),

Burdette v GM Department, 11 PRB 303, 309-11 (2001) (long-time employee with fairly clean record, neither rank-and-file witness said appellant had poked or spit at supervisor so issue was a credibility contest between appellant and supervisor, company had previously resolved grievance issue in appellant's favor by allowing him to quit and simultaneously become eligible for recall to another UAW-represented facility, grievance ordered to arbitration absent settlement agreeable to appellant and union, 30-day grace period allowed to appellant to consider whether to accept settlement of retirement offered by company, PRB jurisdiction retained),

Acton v GM Department, 11 PRB 362, 365-66 (2003) (local advocated arbitration of grievance, high-seniority employee, union is to accept grievant's version of facts if credible, GM department did not interview undercover agent involved in claimed drug transaction and so had no basis to credit her over appellant, local committeepersons who did interview agent found her not credible, arbitration precedents offered by UAW are distinguishable, grievance remanded for arbitration absent settlement, PRB jurisdiction retained, requests for further action by PRB to be made within 30 days of resolution of grievance),

Morgan v Local 832, PRB Case 1462 (1/13/05), pp 8-11 (in grievance protesting management's refusal to allow appellant to bump into packer/stocker classification, record and PRB hearing testimony showed appellant had completed training necessary for the position, arbitration decisions relied on by the local were distinguishable since the employees in those grievances either lacked training and experience or their personnel records did not reflect it, management originally approved appellant for packer/stocker position and then changed its mind after talking with local president, local president's interpretation of contract was not supported by arbitration decisions which were produced, and fact that other union members may have been denied seniority rights based on a misunderstanding of the contract did not give local a rational basis for refusing to process this grievance);

Parden v Region 1A, PRB Case 1585 (3/3/08) pp 10-13 (union ordered to try to re-negotiate grievance even though the company has no reinstatement-of-grievances letter, because member had high seniority, his low blood alcohol level was considered negative under the company's strict standard, management was hostile to him, and international rep had no experience arbitrating similar cases, did not investigaste other similar cases at this plant, did not meet with appellant or explain his decision, and did not hold the grievance open while appellant appealed),

Neely v Region 3, PRB Case 1601 (4/21/09), pp 11-19 (while an established adverse arbitral precedent would satisfy the "rational basis" test even if management's decision were patently unfair, part of the union rep's responsibility is to investigate particular circumstances of the grievance and research prior umpire decisions; contrary to the union the prior decisions show an arbitrator will consider the reasonableness of a member's failure to reply to a five-day quit letter, appellant showed significant issues whether her actions were reasonable and the company's action unreasonable in sending the letter, and there would be nothing to lose by arbitrating; arbitration is directed unless the company agrees to restore appellant's seniority).

In two other post-1980 grievance appeals the PRB as much as held the same.

Thielen v Local 72, PRB Case 1481 (11/22/04), pp 15-16 (grievance was filed against management's decision to allow recording secretary to schedule her vacation at her discretion according to practice for local officers with full-time or part-time representational duties rather than practice which used seniority within her department, grievance was granted as company simultaneously changed its practice regarding officials with part-time representational duties, recording secretary whose representational duties were part-time appealed, PRB held that grievance settlement would have been irrational in light of different treatment of officials with part-time representational duties, but that appeal was mooted by change in company practice),

Lescoe v Local 900, PRB Case 1487 (5/12/05), p 15 (though not required to resolve grievance aspect of appeal because it was settled, PRB notes local's handling of it was inadequate in that appellant would have been unlikely to have encouraged an unauthorized walkout while campaigning in committeeperson election, none of the 11 member statements gathered by the company the day after the walkout implicated appellant, the one statement implicating appellant was given 20 days later by a member who was fired that day and who circumstances suggest may have been acting on behalf of supporters of opposing caucus or of local in retaliation for appellant's successful challenge of previous election, and local never interviewed the accuser).

Two more post-1980 grievance appeals, while not granted on the basis of irrational handling, may have been influenced by the more-lenient standard.

Janicki v UAW, 3 PRB 333 (1982) (where local bylaws provided for consideration of appeal by full shop committee, consideration by shop chair alone is insufficient),

Hauben v Local 3000, 8 PRB 1 (1993) (grievance appeal held timely where appellant asked local president about appealing it within time period allowed and president refused to allow her to present it to the membership),

Another, though denied, gives insight into the review process.

Reed v UAW, 10 PRB 568, 568-69, 573 (2002) (though UAW rationally withdrew recall grievance because in fact no junior member was recalled ahead of appellant, it gave appellant inconsistent and incorrect reasons (1) that grievance was barred by the reinstatement-of-grievances letter of the contract, (2) that it was an area hire grievance, and (3) that it was untimely).

Note the importance the PRB attaches to the requirement that the appellant have previously alleged specific evidence to the IEB in support of at least one of the four tests -- and that the IEB have permitted the facts to be developed sufficiently for PRB evaluation of them later. In other words, an appellant may not wait until reaching the PRB to make a claim under one of the four tests.

Benton v Local 1977, 5 PRB 52, 55 (1986) (specific claim of management collusion was not sufficiently developed in IEB record, remand to IEB);

compare Lescoe v Local 900, PRB Case 1430 (8/28/03), pp 6, 9 (in election appeal, appellant prevails partly based on argument not presented to IEB).

What if the union settles a strong grievance for less than 100%? A successful appeal would have two results, the PRB noted in a 1998 decision: (a) reinstatement of the grievance, and (b) return of the member to terminated status while the grievance worked its way up to settlement or arbitration. Summarizing the 1998 decision in 2009, the PRB said the appellant,

an employee with 29 years of seniority, was terminated on a questionable accusation that he damaged the deck lid on a vehicle. The Local Shop Committee Chairperson negotiated a settlement that returned Ayres to work without backpay. Despite the strong merits of Ayres claim to have been unjustly disciplined, we held that the decision to withdraw his grievance from the Umpire was rational, because the risk of losing the settlement was too great.

Ayres v Local 1112, 10 PRB 126 (1998), as summarized in Neely v Region 3, PRB Case 1601, p 14 (4/21/09);

see also Shay v Local 163, 10 PRB 555, 558 (2000) (appellant did not return wages received in grievance settlement while he appealed),

Gardner v Local 653, 11 PRB 40, 43 (2000) (where appellant was accused of deliberately impeding production and seeming to boast of it, though his machine had malfunctioned and his disciplinary record was unblemished it was rational for the shop committee to compromise his discharge grievance by returning him to work without pay after five months),

Lamb v Local 599, PRB Case 1544 (10/26/06), p 6 (had IEB reinstated grievance to procedure, appellant stood to lose the benefit of the good settlement achieved by local).

The PRB will sometimes grant such an appeal anyway, and leave it up to the member whether to take the risk.

Grant v GM Department I, 9 PRB 5 (1995), supplemental decision 9 PRB 20 (1996) (PRB remanded grievance for arbitration absent settlement and ordered 30-day delay in implementation of its decision to give appellant a chance to change his mind and agree to grievance settlement, grievant later did change his mind),

Burdette v GM Department, 11 PRB 303, 310-11 (2001) (30-day delay allowed for appellant to change mind).

Whether a grievance settlement is rational, and whether it is correct, are not the same.

For example one member appealed the withdrawal of a grievance against management's refusal to place the senior member in a skilled trades position. Throughout the grievance and the appeal, no one produced anything showing precisely what the member's perceived deficiencies were. Still, the PRB would not second-guess and the appeal failed.

Shauver v Local 1112, 6 PRB 370, 372 (1992);

see also Jodlowsky v UAW, 5 PRB 463, 466 (1988),

Bania v Ford Department, 5 PRB 651, 657 (1989),

Smith v Local 699, 6 PRB 168, 180, 185 (1991),

Smith v Local 699, 6 PRB 168, 185 (1991) (dissent),

Farrell v Local 1929, 6 PRB 424, 429 (1992),

Jaworski v Ford Department, 6 PRB 544, 551 (1993).

In a second example the PRB upheld withdrawal of a grievance despite finding that management's claim of a threat was marginal.

Compton v Region 8, 11 PRB 393, 398-99 (2002).

An unusual concurrence in a third appeal makes the point most clearly. The author of the following voted to deny a grievance appeal:

My colleagues have convinced me that, in light of the arbitral precedent applicable to Caterpillar and the UAW, we cannot say that the withdrawal of Walter Zepplin's grievance was "devoid of any rational basis." I should not like to leave the impression, however, that it was the unanimous view of the members of the PRB that justice has been done in this case. A 22-year employee has lost his job because, while on disability leave, he continued his longstanding practice of helping out his wife in her handicraft business at a crafts show. He has been denied the opportunity to contest that termination before the contract umpire. I consider that a most regrettable result.

...

It is unfortunate that grievant may have lied about his activities to the Union and the Company. I concede that lends some further "rationality" to the decision to withdraw the grievance. But in my experience there would be far fewer grievants going to arbitration if only the pure in heart were eligible. Twenty-two years of seniority were on the line here; someone scared about that large looming loss might well have succumbed to a hasty falsehood. The personal pique of a Union grievance chairperson about grievant's deception should certainly not have been determinative. As to the adverse decision of the state unemployment compensation referee, it's the rare arbitrator who deigns to give more than a passing nod to such extraneous administrative rulings. Regardless of whether grievant Zepplin would ultimately have won or lost at arbitration, he had an eminently arguable case and he ought to have had his chance to be heard.

Zepplin v Local 974, 6 PRB 477, 486-87 (1993) (concurring);

see also Lacey v Region 1, PRB Case 1577 (1/24/08) p 5 ("The termination of an employee with a clean disciplinary record for an understandable error such as Lacey's disregards commonly shared understandings of justice and fair play. Nevertheless, the discipline assessed in this case apparently did not violate the [contract].").

There is a tension between this language -- the PRB can review a settlement to see if it was "devoid of any rational basis" -- and other language in the constitution saying the PRB cannot "review in any way an official collective bargaining policy" of the UAW. The PRB says these are different concepts and I suppose it is right. Perhaps the distinction is that the PRB cannot set or modify or even interpret an official UAW policy, but once the UAW has done this the PRB can apply the policy to a specific grievance, and test whether the UAW followed it or arguably followed it in handling that grievance. But in practice the distinction can be confusing.

Article 33 section 3(f) limitation,

article 33 section 4(i);

Hopkins v Local 730, 1 PRB 469, 472 (1969), vacated 1 PRB 477 (1969) (distinguishing bargaining policy and bargaining procedure),

Vogen v Local 900 I, 9 PRB 614 (1998), later decision 9 PRB 624 (2000), reconsideration denied (7/19/00), p 2 of reconsideration (review of policy and review of rationality are two different things),

Schick v UAW, 11 PRB 415, 419-20 (2002) (review of policy and review of rationality are two different things),

Strohmeyer v GM Department, PRB Cases 1434 and 1439 (12/22/03), p 22 (distinguishing between interpreting a collective bargaining agreement and applying it in context of disputed facts).

Most UAW grievances are handled rationally or better. Most appealed grievance-handling is so held by the PRB, which generally defers to the UAW's judgment.

Jodlowsky v UAW, 5 PRB 463, 466 (1988) ("The Union is entitled to great deference in the area of exercise of its judgment as respects the disposition of grievances."),

Lawrence v Local 1405, PRB Case 1564 (4/17/07), pp 13-14 ("It would have been irrational for the Union to have rejected this very excellent settlement in order to challenge Lawrence's suspension through arbitration.").

Grievances specifically

Absenteeism

The union agrees a company can expect employees to show up on time. In a 2005 appeal by a member on an LCA the PRB said:

Furthermore, in addition to the disciplinary actions that led to Clark's termination on August 25, 2003, the Company's records show that Clark was frequently absent for medical reasons during the two year period preceding his discharge. While these absences were not grounds for discipline, they would have made it more difficult for the Union to convince the Company to reinstate Clark after he was terminated for the second time. As the Union has acknowledged, Ford has a right to expect its employees to report on time for their scheduled shifts.

Clark v Local 325, PRB Case 1501 (4/18/05), p 6.

As noted elsewhere, the union has the burden of proof in absenteeism grievances.

Five appeals succeeded where the UAW failed to investigate or interpreted the absentee procedure too narrowly. Be very sure the company is notified timely of the reasons for any absence. In a 2000 decision, the severely ill appellant relied on her doctor to notify the company properly and the doctor claimed to have done so; but the doctor's communication was faulty; appellant was terminated and her grievance and appeal were denied.

Local 699, 3 PRB 302, 303 (1982) (appeal granted in part, by IEB),

Fiolek v Region 1A, 5 PRB 274, 276 (1987) (appeal denied),

Williams v Chrysler Department, 5 PRB 748, 753-55 (1990) (remand for investigation of medical information to be submitted by grievant),

Moran v Agricultural Implement Department, 6 PRB 296, 302 (1992) (remand for investigation),

Moran v Agricultural Implement Department, 6 PRB 303, 309-10 (1992) (remand for arbitration and for consideration by UAW whether appellant should be allowed to play active role in arbitration),

Testerman v Chrysler Department, 9 PRB 156 (1996) (remanded, union interpreted chronic absentee procedure too narrowly),

Testerman v Chrysler Department, 9 PRB 165, 170 (2002) (damages appeal dismissed as untimely),

Sills v Local 9212, 10 PRB 108, 112 (1998) (appellant was absent approximately one-third of the time),

Johnson v Local 1292, 10 PRB 136, 139 (1998) ("The fact that an employee is taking drugs does not excuse absence from work or tardiness."),

Baker-Williams v Region 3, 10 PRB 511, 516-18 (2000) (evidence is weak that doctor responded timely and properly to company's five-day letter, the burden of proof in the grievance procedure was on the union, and despite depression appellant could have responded to it herself),

Douglas v UAW, 11 PRB 74, 76 (2000) ("[appellant's] good intentions and her pledge never to miss time from work again do not provide us with a basis for ordering the reinstatement of her grievance"),

Gracia v Ford Department, 11 PRB 368, 372 (2001) (though appellant may not have received the five-day letter, she heard about it and responded to the company which said the clock was running on providing medical proofs),

Dickerson v UAW, 11 PRB 530, 535 (2002) ("Dickerson's domestic problems do not excuse his repeated failure to report for work on time."),

Woods v Local 31, PRB Case 1416 (12/20/02), pp 4-5 (appeal denied),

Mitchell v Local 533, PRB Case 1456 (2/20/04), pp 7-8 (appeal denied),

Hamilton v Region 9, PRB Case 1460 (2/20/04), pp 6-7 (company gave appellant several opportunities to provide necessary documents to support request for leave),

Norris v Region 1A, PRB Case 1485 (2/10/05), pp 7-8 (no violation of contract in company's discharge of chronically absent low-seniority member on an LCA who did not call in on day of absence, who did not follow company procedures for absences, and who refused to sign a medical release form).

Hill v Local 12, PRB Case 1516 (9/20/05), p 9 (company had right to insist that appellant show up for scheduled shifts),

Lamb v Local 599, PRB Case 1544 (10/26/06), p 6 (member failed to respond to a five-day letter),

Greene v Local 7777, PRB Case 1560 (3/21/07) pp 10-11 (though company may have violated the precise terms of the point system in its attendance and progressive discipline policies, the system was never strictly enforced; appellant's absenteeism was excessive enough that the union could rationally conclude that an arbitrator would have refused to reinstate him),

Tolliver v Local 551, PRB Case 1566 (5/7/07) pp 5-6 (appellant knew how to extend medical leave; he did not respond to five-day letter which the post office attempted to deliver to the correct addres and left notices twice),

Allard v Region 9, 10 PRB 175 178 (grievant's present improved state does nothing to strengthen the merits of his grievance).

After-acquired evidence

Seeback v Region 1, 5 PRB 608, 611 (1988) (noting affidavits favorable to appellant were prepared only after grievance was withdrawn),

Williams v Chrysler Department, 5 PRB 748, 754 (1990) (PRB remands grievance to UAW to consider medical evidence to be presented by appellant),

Rios appealing Flowers v Local 148, 6 PRB 414, 422 (1992) (in review of trial proceeding PRB rejects appellant's objection to use of after-discovered evidence because appellant had impeded its discovery),

Reighard v UAW, PRB Case 1532 II (6/27/06), pp 6-8 (president refused to comply with PRB order to re-submit appeal to IEB, and PRB would ordinarily re-order president to do so, but does not in this case because considering the after-acquired evidence submitted by appellant most favorably to him, it is so clear that he cannot prevail).

Allocation of settlement

Hein appealing Baudoux v Region 1, 5 PRB 703, 710 (1989) (class grievance),

Hofsess v Local 163, 6 PRB 66 (1990) (group grievance),

Gillert v Local 594, PRB Case 1591 (6/10/08), pp 11-13 (though many of appellants' claims lacked contractual merit, the local shop committee negotiated vigorously over a period of years; their suggestion that the union could have obtained anything near $150,000 for each appellant seems like wishful thinking; union obtained substantial monetary settlement, which was divided apparently equitably).

Area hire

Smith v Local 699, 6 PRB 168 (1991) (implementation of umpire's seniority decision re seniority employees and document 21 hires),

Gartin v GM Department, 6 PRB 256, 260 (1991) (relative rights of document 21 employees),

Long v Local 22, 10 PRB 206, 211-12 (1998), supplemental decision, 10 PRB 216, 220-21 (1999) (absence of members' names from local area hire list),

Genshaw v Local 5960, PRB Case 1447 (11/20/03), p 9 (clear and unambiguous written agreement cannot be varied by oral expression),

Shotwell v GM Department, PRB Case 1571 (8/9/07) p 8 (a number of considerations beyond the proximity of the plants determined the shape of each Area Hire Area in 1993; the decision was not unilateral on the GM department's part but the result of negotiations with the company, so IEB would have no basis to set it aside anyway).

Backpay

A 2001 IEB decision discounted a backpay award against a local union for a reinstated grievance which later won limited backpay from the company, because (1) the appellant could have begun his appeal earlier, (2) it would have taken time anyway for the UAW to take the grievance to arbitration anyway had it not been withdrawn, and (3) appellant had not looked for work after being discharged. The PRB later reversed as to (1) because appellant was not promptly informed the grievance was withdrawn.

A 2008 decision observed that an argument that you are entitled to backpay, in addition to reinstatement, if you were singled out and fired for the same offense which other members were also committing, would be unlikely to succeed.

Backpay in non-grievance appeals is discussed elsewhere.

Pfeiffer v Local 556, 1 PRB 485, 490-92 (1968) (IEB ordered the local to pay member 14 months of backpay, less deductions including interim earnings, due to refusal to arbitrate meritorious grievance),

Dawkins v UAW, 2 PRB 296, 301-03 (1975) (PRB approved local membership vote to pay member $1100 in backpay for grievance settled without backpay, the grievance was firmly rooted in seniority principles but the committeeman did not advance it to the next stage),

Resnick v Local 906, 3 PRB 221, 227-29 (1981) (unreasonable delay in grievance-processing, several arguments might have persuaded arbitrator, union would not respond to member's requests for information about grievance, union sent notice of arbitration to wrong address, appellant's request for backpay deferred pending disposition of grievance by umpire),

Grant v GM Department I, 9 PRB 5 (1995), supplemental decision 9 PRB 20 (1996) (discharge grievance settled for reinstatement plus 30 days on the record and no backpay, PRB remanded grievance for arbitration absent settlement and ordered 30-day delay in implementation of its decision to give appellant a chance to change his mind and agree to grievance settlement, grievant later did change his mind),

Vogen v Local 900, 9 PRB 614, 624,628-29 (1998, 2000) (after PRB finding that a local union irrationally handled appellant's discharge grievance it was reinstated, ultimately the company agreed to reinstate him with full backpay and benefits and seniority, appellant negotiated instead for a $30,000 lump sum and released the company in a formal document and quit, PRB held the release by implication necessarily also released the local)

Morris v Local 1853, 9 PRB 225, 241, 244 (1999) (backpay ordered after grievance loss at arbitration, attorney fees ordered, and job offer obtained),

Taylor v Local 1853, 10 PRB 10 (2001) (after the IEB reinstated appellant's grievance and remanded it to the local the company settled for reinstatement and backpay of $58,000+, which covered only to the date when the local had withdrawn the grievance, appellant asked the local for the remaining backpay damages, the IEB awarded them partially, the reasons for the reduction were (1) appellant could have begun his appeal earlier and (2) it would have taken time anyway for the UAW to take the grievance to arbitration had it not been withdrawn and (3) appellant had not looked for work after being discharged, the total was $45,000+, PRB raised it to $84,000, noting that appellant had not been informed promptly the grievance was withdrawn),

Ayres v Local 1112, 10 PRB 126, 128 (1998) (reinstatement of discharge grievance settled for reinstatement and no backpay, would return member to terminated status),

Grabowski v Local 157, 10 PRB 592, 597 (2000) (If a member wins a grievance and partial backpay that under the contract strictly considered he or she should have lost completely, he or she is not entitled to compensation from the union for the remainder of the backpay),

Sparrow v Local 1250, PRB Case 1457 (2/23/04), pp 9-10 (union got member back to work without backpay though company's discharge decision was not inconsistent with the contract, he appealed for the backpay, citing instances where other members had been treated less severely, PRB affirmed),

Garab v TOP Department, PRB Case 1461 (3/18/04), pp 7-8 (member's refusal of settlement offer of possible reinstatement with seniority with no backpay but a higher pay rate in a different department, and her statements that the only thing she wanted was punitive damages, were factors in PRB approval of union decision to settle meritorious discharge grievance of high-seniority member for backpay only),

Lombard v UAW, PRB Case 1525 (11/15/06), reconsideration denied (1/30/07), p 8 n 33 ("In the Morris decision, [the PRB] not only awarded the appellant the sum of $250,000 for back pay and certain attorney's fees and expenses, but it also provided him with an offer of employment in lieu of front pay. [footnote omitted]"),

Francis v GM Department, PRB Case 1587 (10/29/08), pp 16-22 (appellant and likely others had access to computer with downloaded pornography, evidence supports that appellant downloaded it despite his denial and that others did too, evidence supports that appellant's health and safety grievance had no connection to his discharge, so settlement for appellant's job without backpay was rational, argument that other people were also downloading pornography would not be likely to convince an umpire that appellant was entitled to back pay);

Ratliff, CAC, session 10/92 (management claimed appellant assaulted supervisor, GM department reached settlement for $35,000 in backpay which appellant rejected, in court appellant pled guilty to disorderly conduct not assault, supervisor's word without more should not be taken over appellant's, no proof or finding of unprovoked assault, CAC remanded),

Shannon, CAC, session 11/94 (appellant bid out of chipper classification and was subsequently laid off for lack of work though junior chippers were kept on, after recall he grieved and company agreed to train him as a chipper, as to backpay company offered pension credit for time off, remanded so appellant could take his chances before an arbitrator),

Boswell, CAC, session 5/01 (union settled discharge and backpay to be paid during period of termination, appellant appealed settlement because backpay was incorrect, company arbitration manager says shortfall is being addressed and the difference will be remedied, CAC remanded);

Blalock v TRW, 1993 WL 475982, 144 LRRM 2168, 2173-74 (ED Mich, 1993) (in oral argument it is stated that CAC has never awarded backpay),

"Capital offense"

Dunn v Region 1A, 6 PRB 508, 511 (1992) (fighting),

Hayden v GM Department, 6 PRB 521, 527 (1993) (selling alcohol in plant),

Dickerson v UAW, 11 PRB 530, 535 (2002) ("[Under an LCA an] offense that might for another employee warrant no more than a reprimand can ... constitute what is in effect a capital industrial offense.").

Casino Employers

Recently the UAW has begun organizing casinos.

Franks v UAW, PRB Case 1520 (12/20/05) p 13 ("[A]ssumptions that might be valid about an employee's knowledge of her dues obligation in the context of the automobile industry are not necessarily appropriate in the context of a Casino."),

Greene v Local 7777, PRB Case 1560 (3/21/07) pp 10-11 (though company may have violated the precise terms of the point system in its attendance and progressive discipline policies, the system was never strictly enforced; appellant's absenteeism was excessive enough that the union could rationally conclude that an arbitrator would have refused to reinstate him);

Lacey v Region 1, PRB Case 1577 (1/24/08) pp 4-5 (though discharge due to misunderstanding in cashing stale check was harsh, contract exempts violations of variance policy from progressive discipline),

Franks v Local 7777, PRB Case 1604 (11/25/08), pp 11, 15-16 (though election committee scheduled election in defiance of vote of membership and appellant lost Motor City chairperson position by only seven votes, election will not be rerun again since appellant did not appeal until after IEB-ordered rerun election which reran only other positions not Motor City chairperson position; other member who did appeal the election timely was not a candidate for Motor City chairperson),

Lartigue v UAW, PRB Case 1605 (1/28/09) pp 10-12 (coalition bargaining, discussed elsewhere),

Lartigue v Region 1, PRB Case 1622 (6/2/09), pp 6-7 (after company denied local president's request for union leave, her only option was to report for work and file a grievance);

Sorice v Region 1, IEB Decision (8/6/07), pp 5-6, 9 (fact that cash drawers of appellant and co-employee whom she relieved both balanced at the end of their shifts does not square with appellant being at fault for variance of $728.05 that appeared during her shift).

Circumstantial evidence

Helton v National Heavy Truck Department, PRB Case 1541 (10/26/06), p 6 ("The Union asserted that Management's case was purely circumstantial and that the appellants' claim to have completed their assignment correctly ought to have been give more weight. Apparently, the supervisors who investigated the incident were not persuaded by this argument. The Union had no concrete evidence to refute Management's conslusion....").

Compromising a grievance

Not every grievance can or should be arbitrated simply because it has some merit.

Early v Region 5, 4 PRB 315, 318 (1984) ("Not every grievance can or should be arbitrated simply because it has some merit.... Ultimately, the issue was settled on the basis of a compromise by both sides. Certainly such a settlement, when there is a genuine dispute over the meaning and application of collective bargaining agreement language, is not devoid of any rationl basis."),

Ayres v Local 1112, 10 PRB 126 (1998), as summarized in Neely v Region 3, PRB Case 1601 (4/21/09), p 14 ("[The appellant] an employee with 29 years of seniority, was terminated on a questionable accusation that he damaged the deck lid on a vehicle. The Local Shop Committee Chairperson negotiated a settlement that returned Ayres to work without backpay. Despite the strong merits of Ayres claim to have been unjustly disciplined, we held that the decision to withdraw his grievance from the Umpire was rational, because the risk of losing the settlement was too great."),

Gardner v Local 653, 11 PRB 40, 43 (2000) (where appellant was accused of deliberately impeding production and seeming to boast of it, though his machine had malfunctioned and his disciplinary record was unblemished it was rational for the shop committee to compromise his discharge grievance by returning him to work without pay after five months),

Ilgenfritz v Local 2250, PRB Case 1630 (9/14/09) pp 7-8 (even though due to union vigilance appellant had a clean record at the time of the first of three suspensions, union's fear that management was setting appellant up for discharge justified its decision to settle the three on the basis of a clean record and no pay, where appellant admitting forging an excuse in one of the three instances).

Contracting out

Sears v Local 1292, PRB Case 1612 (2/24/09), pp 11-12 (though local could have put forward a theory to support appellant's position that company should have allowed him to level in from inverse seniority layoff so he could apply for a special assignment at another plant, and though the issue has been addressed going forward by giving notice to employees on inverse seniority layoff when similar job opportunties arise, in the absence of a clear contract violation the committeeperson persuasively explained that if these assignments began to generate a lot of grievances, the entire program of using bargaining unit employees rather than outside contractors to do them could be jeopardized).

Credibility

If there are factual disputes the grievant's version of the facts is to be accepted if credible.

Pocket guide, p 170;

Hall v Local 735, 4 PRB 263, 266-67 (1984),

Woods v Local 863, 5 PRB 422, 424-25 (1987),

Acton v GM Department, 11 PRB 362, 365-66 (2003),

Parden v Region 1A, PRB Case 1585 (3/3/08), p 13;

Ratliff, CAC, session 10/92.

Criminal conduct

If a member is fired for conduct and prosecuted criminally for the same conduct, given that witnesses would be unlikely to talk to either the union or management the union's proper course is to seek an agreement with the employer to suspend grievance proceedings pending trial of the criminal case, after which witnesses would become available.

Petersen v TOP Department, 8 PRB 289, 298 (1995).

Denial of union representation

Taberski v Region 1A, 11 PRB 541, 544-45 (2002) (improper denial of union representation at time of discharge, but appeal denied because denial was not substantively prejudicial).

Disability, medical restrictions, fitness for duty

Marshall v Local 1364, 1 PRB 522 (1969) (car accident),

Ponce v GM Department, 10 PRB 293, 299 (1999) (medical arbitrator's opinion is binding),

Wuebben v Local 314, 10 PRB 379, 382-83 (1999) (refusal to accommodate physical restrictions),

Padilla v GM Department, 11 PRB 336 (2003) (epilepsy),

Zavadil v Ford Department, PRB Case 1407 (3/19/03) (pregnancy),

Schillinger v Region 4, PRB Case 1414 (4/17/03) (fitness-for-duty exam),

Ballard v Chrysler Department, PRB Case 1615 (2/25/09), p 7 (no evidence that appellant made any effort to obtain a medical leave),

Barnett v Local 735, PRB Case 1632 (10/28/09), pp 8-9 (restrictions placed on appellant by his own doctor were quite severe, and he had no right to insist that a particular job was within them; it is the plant physician who decides the requirements of any job).

Disagreement within management

Sorice v Region 1, IEB Decision (8/6/07), p 9 ("There are unanswered questions in this case which don't add up to termination.... The evidence shows that there was disagreement among management personnel that the Appellant should not be terminated....").

Discrimination, nepotism, disparate treatment

This section primarily concerns discrimination committed by the company, though some union discrimination is touched on. Discrimination by another member of the local is discussed elsewhere. Discrimination by a local is discussed elsewhere. Workplace sexual and racial harassment is discussed elsewhere.

Sometimes appeals concern discrimination unrelated to general social prejudice.

Snyder v Local 2031, 9 PRB 265, 268-69 (1996) (where appellant admitted guilt and served jail time for drug sale, appeal rejected despite that eleven years earlier seven employees who had been terminated and jailed for selling drugs in the plant returned to work after two years),

Harris v Region 3, 11 PRB 537, 539-40 (2002) (described more fully elsewhere, appeal rejected where member admitted he assisted in installing company parts in co-employee's truck in the plant, despite that union succeeded in reinstating a third employee who had also helped to install the parts, even though the truck had a license plate so third employee had to have known the truck was not new).

But several do implicate these issues.

In the first, seven members filed complaints against member Agatha Praniewicz claiming her loud abusive talk disturbed the department and asking that she not be returned from layoff. She was shown the statements at a meeting. Asked for a response, she demanded a trial. Concluding without a trial the charges were true, the local requested her discharge from the company. It complied. After intervention by the UAW Fair Practices and Anti-Discrimination Department asking the local to seek reinstatement and backpay from the employer, the local membership refused to alter its position. Sister Praniewicz appealed. An IEB appeals committee ordered her exoneration, including negotiation for a letter of recommendation from the employer and payment of $800, in light of her desire now to sever her employment and find work elsewhere. On the local's failure to comply the IEB threatened an administratorship, at which point the local paid the $800 into escrow. Noting the local's failure to accord her notice, a trial, and the opportunity to confront her accusers, the PRB upheld the IEB action and released the $800 to her.

Local 469, 1 PRB 27, 29-32 (1958).

The second concerned sex discrimination in a GM plant. For many years the membership had voted for contracts with two separate non-interchangeable male and female seniority categories. Men outnumbered women in the plant and in production jobs. The appeal noted many instances of males assigned permanently to jobs women could do, temporary assignments of males to female jobs, and junior males working while females were laid off.

The PRB said all this could be explained. It said factors such as the smaller number of female occupational groups, the female workers being generally older resulting in less frequent turnover among females, and the laid-off positions being female jobs were non-discriminatory. It dismissed the part of the appeal alleging discrimination.

It added that seniority is now a recognized equity in union shops and should be observed except in emergencies.

Lorenz v Local 174, 1 PRB 133, 135 (1960);

compare Berry v Local 600, 4 PRB 53, 56-57 (1983) (PRB will examine bargaining policies structured by a numerically superior group that discriminate against a numerically inferior group which has less political influence).

This decision may no longer be good precedent in light of the union's no-discrimination policy.

Next was an EPC challenge to an administrator's removal of four local officers for effectuating a membership vote to defy a UAW order to racially desegregate the rest rooms and drinking fountains of its hall. Ten other officers taking the same stand were not removed. After the removals the local desegregated the facilities. The PRB upheld the IEB, citing article 2 section 2. It rejected claims that the administrator discriminated by singling out the four, and that ownership of the hall by a separate building corporation insulated the officers.

Sims v UAW, 1 PRB 200, 205-06 (1961).

The next, brought by a white male, challenged the 1990 version of document 60 of the UAW/GM contract. At the time document 60 provided that a committee would consider pre-apprentice training and apprentice selection as it related to the goal of bringing more minorities and women into apprentice training. The PRB quoted article 2 section 2 and observed:

[In 1983 after a charge against GM and the UAW the EEOC] made a finding "that there is sufficient reason to believe that past employment discrimination existed to warrant all remedial and affirmative action," and that remedial action included a promise not to "discriminate unlawfully on the basis of race, color, sex or national origin in violation of Title VII." [footnote omitted] Confronted with such a finding, what are the responsibilities of an organization which seeks to embrace such a broad spectrum of society, in terms of its "improving their working conditions" and "protecting their interests"?

Although the terms of the Conciliation Agreement entered into by the EEOC, GM, and the UAW specifically acknowledge that the Union "was not and is not involved in the formulation or implementation of any past or present Corporation policy" [footnote omitted] may the Union, consistent with its stated policies, affirmatively assist in undoing the effects of past discrimination that adversely affected the interests and employment opportunities of its female and minority members by entering into an agreement such as is exemplified by Document 60 [concerning pre-apprentice training as a method of bringing more minorities and females into the program]? Or must it remain neutral, as insisted by appellant? ...

We do not decide these questions in the context of these appeals [because a concession by appellant at oral argument before the PRB moots them].

Loomis v Local 362, 8 PRB 322, 329 (1994).

The PRB was intrigued by one hostile-work-environment appeal. It agreed the member had unfair amounts of overtime assigned, and that her protests made one or more co-workers hostile. But it also found the local took effective measures. The shop committee referred her grievance to the local's fair employment practices committee. It investigated and found improper discriminatory acts by a fellow member, as well as management condonation. It made recommendations, all of which were accomplished. As for the fellow member, the PRB recommended an article 31 charge should harassment recur.

Harris v Local 2123, 10 PRB 490, 498-501 (2000).

In the next, the appellant discovered a cartoon at her workstation depicting a hooded figure with a Ku Klux Klan symbol. She was upset and went home. A psychiatrist said she couldn't work. She was denied workers compensation, but got sickness and accident benefits. The union grieved the hostile environment. Management agreed she shouldn't have to work in a degrading environment. It promised to speak to the appropriate individuals, and to abide by the non-discrimination pledge now and in the future. The union considered this satisfied the grievance completely and closed it. The appellant stayed on leave. A year later her seniority broke time for time. A year later she appealed, asking for a return to work and backpay. This relief had not been requested in the original grievance. Noting her now-broken seniority, the PRB approved the union's handling of the grievance.

Yelder-Whittaker v Local 1292, 11 PRB 8, 11 (2000).

The next considered racial implications of a facially non-racial grievance. White member Thomas McAuley had been disciplined six times by his younger black supervisor. Brother McAuley had once embarrassed the supervisor, and threatened to add his name to a pending EEO case. Later McAuley was disciplined and told to leave the plant. At the end of his shift the supervisor left and saw McAuley still on company property near his (the supervisor's) car. The supervisor claimed McAuley made threatening gestures and then followed his car; McAuley denied this. He explained he had remained on the property to see the supervisor's car; on seeing the supervisor enter it McAuley remembered a similar car had been seen passing his house for the last 1-2 months; so he wanted to get its license number. The next day McAuley gave the license number to a neighbor involved with the neighborhood watch, and asked him to check for the car.

The UAW settled the grievance short of arbitration. The appeal followed. The IEB and PRB upheld the union action, noting inconsistencies in McAuley's account. A concurring PRB member added:

[T]here seems to me to an "elephant in the living room" that is being ignored. There are only incidental references in the record to the issue, but, in all probability, if the matter went to arbitration it would be explicitly presented to the Umpire by the Company even if the Union continued to ignore or understate the significance of the element in the case.

...

How persuasive on the credibility issue to a current GM Umpire would the grievant's excuse that he suspected the supervisor to be cruising his neighborhood for purposes considering theft of his automobile or trashing it for parts? ... The relationship between the grievant and his supervisor would not be lost on the Umpire and the racial implications of the grievant's excuse for staying on the property and following the supervisor's car would at least implicitly underline that element. Even successful blacks that have moved up the ladder to supervision in a southern auto plant are suspected of theft.

...

Raising the specter of race is an unpleasant and undesirable element which is the reason for its avoidance. In this [PRB] member's opinion, however, that is all the more why these matters should be recognized and ventilated if we are ever to get beyond their silent corrupting influence.

McAuley v GM Department, 11 PRB 474, 481-83 (2003).

In a 2003 appeal a pregnant member was working satisfactorily within her restrictions. Lying about work unavailability, the company ordered her onto medical leave. The local union concurred. Then it grieved untimely. The grievance was withdrawn and an appeal based on pregnancy discrimination followed. The IEB upheld the union action. On further appeal the PRB asked the UAW for factual information. The UAW reversed course and acknowledged the company's pretext.

Zavadil v Ford Department, PRB Case 1407 (3/19/03).

Next, a decision involved a member talking to another member at work referred to her conditionally using a racial slur. He was suspended for 30 days and did not appeal. A year later he came into the area of another fellow member, grabbed her soft drink, said and performed vulgar references, argued with her, and addressed her with a sexual slur. The decision describes the foregoing explicitly. Ford company fired him, citing a zero tolerance policy. The union got him reinstated after 21 months. He appealed for the backpay, citing instances where other members had been treated less severely:

Sparrow's attorney has presented abundant documentation demonstrating that Ford does not generally assess 30-day disciplinary layoffs for first instances of verbal abuse, and that it does not terminate employees for violations of this kind even where the incidents involved threats and fighting.

Many of the cases cited by attorney Gordon are distinguishable from appellant's circumstance because they do not arise under the "Zero Tolerance of Harassment and Discrimination" policy. The discipline appropriate for sleeping, arguing, fighting or even being intoxicated on the job cannot be compared to the situation where employees are being subjected to racial or sexual harassment. The UAW and Ford Motor Company have mutually agreed that employees are entitled to a work environment free from this kind of harassment. [footnote omitted]

Even in instances that did arise under the "Zero Tolerance" policy, documents supporting the discipline show that the alleged verbal abuse and threatening behavior occurred in the heat of some argument connected to the work environment and that the sexual or racial content was not intended. Sparrow's behavior, on the other hand, was unprovoked in both of the instances where the Company imposed discipline under the Policy.

Sparrow v Local 1250, PRB Case 1457 (2/23/04), p 10.

Another hostile environment appeal produced an ambiguous result. A supervisor had made a hostile vulgar racist statement to member Deborah Torres. Later after he was removed Sister Torres received threatening phone calls. Ten days after the calls started she was given caller ID on her phone. Meanwhile, for 17 days she was denied a job assignment (apparently at her same rate of pay) to which seniority entitled her; during this time the protested member was transferred to an easy job. The shop committee waited four months to file a harasssment grievance.

Later Torres grieved mistakes in overtime equalization. But management corrected them and the grievance was withdrawn.

The local civil rights committee chairman investigated. The specific issues had been dealt with, his final report said, so he recommended the harassment grievance be withdrawn on the basis of plant-wide training on worker environment.

The local settled it without that commitment. Torres appealed to the IEB and then the PRB. Noting evidence of a pattern of unfair tratment and disrespect shown to Torres as a woman and a minority, the PRB said:

These are indeed serious and troubling issues, but they are not problems that we can deal with in an abstract way in response to a grievance appeal. The local parties must become more sensitive to the presence of hostility in the workplace based on race and sex. Local representatives need to be willing to challenge any pattern of behavior on the part of Management which disadvantages employees because of their race or gender.

...

[Civil Rights chair David Sanchez] wrote that the implementation of ... training would be necessary in order to resolve [the grievance].

The settlement reached ... does not indicate that the Company made any commitment to implement a training program for its personnel. It appears that some of the representatives elected by the members of Local Union 594 would also benefit from participating in such training. We hope that the Local will take the initiative to implement training for its representatives in dealing with claims of discrimination and hostility.

We agree with the IEB's conclusion, however, that nothing would be gained at this point by reponening [the harassment grievance]. The specific problems Torres faced in her department ... have been addressed. Any future problems of the type Torres encountered with [the supervisor] would have to be addressed in separate grievances.

Torres v Local 594, PRB Case 1470 (5/25/04), p 13.

Finally, a 2005 decision involved a member about whom another member went to management saying he had harassed her by touching her crotch either with his hand or a tool, showing her a naked picture of himself, and putting his groin into her butt several times over two years. He was discharged. The investigation showed he had done similar things with other women. He argued no one ever told him his behavior was unwelcome, he had not seen the company's zero-tolerance policy, and that other persons charged with sexual harassment had been given 3-5 days off.

The PRB denied the appeal saying progressive discipline applies only to minor shop rule violations, and sexual harassment is not minor. Further, the case involved constant annoying behavior, not something that occurred in the heat of an argument connected to work where no sexual or racial content was intended.

Pairan v Region 3, PRB Case 1508 (6/24/05), pp 9-11.

Practically all other appeals claiming discrimination, nepotism, or disparate treatment have lost.

Nix v Local 1166, 2 PRB 39 (1973) (race),

DeCluett v Local 420, 3 PRB 11 (1980) (race),

James v Region 5, 3 PRB 385 (1982) (racial discrimination by management, grievance ordered into arbitration),

Berry v Local 600, 4 PRB 53, 57 (1983) (fact that local agreement which disadvantages lower-skilled members is aberration in Ford system does not make it discriminatory),

Benton v Local 1977, 5 PRB 52, 55 (1986) (management harassment acquiesced in by union, remanded by PRB with instructions to IEB to consider member's allegations),

Welch v Local 599, 5 PRB 125 (1987) (disability),

Garza v Region 1D, 5 PRB 192 (1986) (disability),

Layton v Local 1112, 5 PRB 222 (1986 (disability),

Clark v Local 31, 5 PRB 246 (1987) (sex),

Steltenpohl v Local 180, 5 PRB 253 (1986) (disability),

Kimberly v Region 1A, 5 PRB 308 (1987) (disability),

Kurtz v Local 599, 5 PRB 359 (1987) (nepotism),

McDaniel v Local 1409, 5 PRB 620 (1989) (sex),

Johnson v Region 1D, 5 PRB 676 (race),

Errett v Region 2A, 6 PRB 14 (nepotism),

Jones v Local 135, 6 PRB 134 (race),

Morris v Local 549, 6 PRB 137 (1991) (nepotism),

McKee v Region 4, 6 PRB 202 (1991) (race),

Sundquist v Local 6000, 6 PRB 215 (1991) (race),

Lewis v Local 167, 6 PRB 403 (1992) (age),

Stokes v Region 1A, 6 PRB 497 (1993) (race, age),

Sanders v Local 685, 8 PRB 257, 258 (1994) (race),

Rivett v Local 699, 9 PRB 382 (1997), modified 9 PRB 391, 395 (1998) (historic industrial antecedent),

McClain v Local 602, 9 PRB 496 (1997) (race),

Palmer v Local 913, 10 PRB 279 (1999) (race),

Bryant v Local 14, 10 PRB 629, 632 (2000) (no principle of industrial relations requires absolute uniformity of treatment),

Jurè v UAW, 11 PRB 150, 153-54 (2001) ("None of claims of discrimination submitted by Jurè bares directly on the issue of race discrimination on the part of those responsible for the decision to withdraw his grievance.... Unfortunately, discrimination is not uncommon in America, and if [supervisor] Bonham did in fact say what Jurè attributed to him, he would be rightly subject to censure. But there is no evidence that considerations of race influenced the Union's decision...."),

Hills v UAW, 11 PRB 352, 361 n 10 (2001) (race claim against employer),

Welch v Ford Department, 11 PRB 406 (2002) (race);

Scott v Region 8, PRB Case 1404 (10/31/02), p 6,

Strohmeyer v GM Department, PRB Cases 1434 and 1439 (12/22/03), p 21 (even if GM believed it was necessary to hire appellants' group to satisfy internal employment goals, nothing supports the notion that EEO regulations would require GM to violate seniority acquisition rules of agreement with UAW),

Williams v Ford Department, PRB Case 1437 (8/29/03), p 7,

Carraro v Ford Department, PRB Case 1442 (12/22/03), pp 7-8 (union activity),

Ray-Barnett v Local 652, PRB Case 1496 (2/11/05), pp 8-9 ("[I]t does appear that the team concept is less adaptable to employees with disabilities than an arrangement where each employee has only one job to perform."),

Edwards v Ford Department, PRB Case 1527 (1/4/06), pp 4-5 (in age and race claim, company made every effort to train appellant on his new assignment and local made certain he was given the opportunity to demonstrate his competence),

Smith v Region 4, PRB Case 1537 (9/27/06), pp 7-8 (prior arbitration precedents hold that the contract language does not protect members for filing workers comp, OSHA, and EEOC claims, and that a high standard of proof exists to show such acts motivated her discharge),

Mitz v Region 1D, PRB Case 1569 (5/8/07), pp 12-13 ("The [intolerable] problems identified by the Civil Rights committee do not appear to have had any connection to the the discipline.... It may be that Wolcott was a poor supervisor. ... The fact that racial tensions have existed in the past and may recur is not the basis for any specific relief."),

Jones v Region 2B, PRB Case 1581 (2/12/08), pp 8-9 (there was no contractual basis for the union to insist that the company give appellant a chance to learn the journeyman job),

Gordon v Local 1112, PRB Case 1594 (6/11/08), p 7 (appellant identified no violation of his contract or pre-retirement rights; fact that the company retained three other employees has no bearing on appellant),

Addison v Region 8, PRB Case 1600 (12/16/08), pp 12-15 (though no arbitrator would sustain a racially motivated or retaliatory discharge even though an LCA was in place, it was rational for union to withdraw appellant's grievance protesting appellant's discharge for violating company prohibition of starting overtime early on weekends, because appellant was on an LCA and he had to have known of the policy, even though another employee signed in early the same day without penalty and other employees besides appellant frequently signed in early, there being no link between the discharge action and appellant's recent EEOC complaint on the basis of race).

The UAW has a special procedure for handling discrimination grievances, discussed elsewhere.

Drugs or alcohol

One early appeal succeeded, where the member was a purchaser not a seller. But generally these appeals have failed. A long-term clean disciplinary record is not a defense. Nor is entrapment, even if the entrapper is your supervisor as seen in a 1996 decision. Nor is being a mere "gofer" in a drug transaction.

The PRB's attitude is summed up in a 2001 decision:

Davis pleasds that he is drug and alcohol free now and has been for some time. He emphasizes the fact that drug addiction is a sickness, a condition like any other illness, and that it is unfair to penalize him for his being ill. We congratulate Davis on his triumph over his addiction and we wish him well for his future now that he is alcohol and drug free. We are sympathetic to his arguments regarding addiction being a form of sickness. Nevertheless, unfair or not, the Company has a polcy against working while using drugs, and arbitrators traditionally uphold the discharges of employees who violate Company policies in this respect. This is not simply a matter of corporate social engineering; it is common wisdom that employees who abuse drugs and alcohol present a significant safety hazard to their coworkers.

Davis v Local 882, 11 PRB 317, 320 (2001).

In a 2003 case the PRB did order arbitration of a PCP-distribution discharge where the member denied it, because of the union's obligation to accept the member's version of the facts if credible, the member's high seniority, and the agent's inconsistent testimony. The CAC also showed interest in a 1999 drug case and a 2000 alcohol case.

Drake v Local 659, 4 PRB 84, 88 (1983) (UAW witnesses testify that incapacitation by alcoholism is satisfactory reason for failure to report for work),

Warren v UAW, 5 PRB 430, 434 (1988),

Robinson v UAW, 5 PRB 439, 445 (1988) (purchaser not seller),

Stewart v Chrysler Department, 6 PRB 151 (1991),

Sheedy v GM Department, 6 PRB 282 (1992),

Holloway v Local 594, 9 PRB 293 (1996),

Snyder v Local 2031, 9 PRB 265, 269 n 2 (1996) (supervisor as entrapper),

Taylor v Local 1666, 9 PRB 115 (1996),

Bobbitt v Local 594, 9 PRB 245 (1996),

Newcomb v Local 1183, 9 PRB 636 (1998),

Sanders v UAW, 10 PRB 355, 358 (1999) (appellant is out of touch with reality),

Sasaki v GM Department, 10 PRB 548, 554 (1999) ("Once an employee's guilt of such an action [sale of prohibited substances on company premises] is clearly established, it is the policy of the Union to withdraw the employee's grievance, just as it did here. We are obliged to respect the Union's policy in this regard."),

LeClerc v DaimlerChryster Department, 11 PRB 321, 325 (2001) (union objected to company's amendment of discharge notice three years afterward, but arbitrator allowed the amendment because the company had promptly, clearly, and repeatedly informed the union that it considered the drug sale charge to be an additional ground for the discharge),

Davis v UAW, 11 PRB 348, 350 (2001) (PRB has no power to see to it that appellant is given a second chance),

Bryant v Local 14, 10 PRB 629, 632 (2000) ("The fact that Bryant may have been under stress by reason of personal circumstances or substance abuse is not a defense to a physical assault."),

Jurè v UAW, 11 PRB 150, 153-54 (2001) (member on LCA, who arrived at work appearing to be drunk, drove Hi-Lo so that fellow member could have been seriously injured, and made a threat of physical violence),

Bladen v GM Department, 11 PRB 226, 228-29 (2001) (mere possession of marijuana on company premises is a dischargeable offense, even for a 29-year employee with a good record, even if others similarly situated have received lesser discipline),

Glysz v Local 211, 11 PRB 327, 331 (2001) ("Glysz's decision to plead guilty to a criminal charge involving drug trafficking clearly established his guilt."),

Acton v GM Department, 11 PRB 362, 366 (2003) (distribution of PCP, remanded for arbitration),

Welch v Ford Department, 11 PRB 406, 409 (2002) (appellant prompted breathalyzer test by saying he felt unwell, and appearing to medical personnel to be intoxicated),

O'Neill v GM Department, 11 PRB 498, 503 (2002) (union pressed grievance to the umpire stage at which point company finally permitted union to interview undercover agent; interview convinced union to withdraw grievance),

Jefferson v GM Department, 11 PRB 504, 506 (2002) (appellant does not explain how it was that agent identified him as a drug seller or why she would say she purchased cocaine from him if she did not),

Peters v GM Department, PRB Case 1408 (10/29/02), p 6,

Huber v Local 933, PRB Case 1412 (12/3/02), p 6,

Diem v Ford Department, PRB Case 1413 (12/2/02), pp 5-6;

Bays v GM Department, PRB Case 1538 (9/28/06), pp 8-9 (undercover agents are not always reliable because they are motivated to produce results from their operations, but appellant admitted drinking beer in the parking lot and observing other employees using drugs, he failed to report the undercover agent's badgering of employees for drugs to the company or union, there was no evidence to contradict the agent's report of the sale, and the substance tested positive for amphetamine even if it could not have been admitted in a criminal trial),

Parden v Region 1A, PRB Case 1585 (3/3/08) pp 10-13 (union ordered to try to re-negotiate grievance even though the company has no reinstatement-of-grievances letter, because member had high seniority, his low blood alcohol level was considered negative under the company's strict standard, management was hostile to him, and international rep had no experience arbitrating similar cases, did not investigaste other similar cases at this plant, did not meet with appellant or explain his decision, and did not hold the grievance open while appellant appealed);

Davis, CAC, session 4/99 (appellant was discharged after claimed threatening behavior supported by statements of co-workers and positive cocaine test; appellant claimed witness statements were inaccurate and he was return to work too early from work-related medical leave; record showed unspecified problems at other Ford plant; appeal referred back to IEB for investigation of the unspecified problems),

Williams, CAC, session 4/00 (appellant took unopened beer can from car in plant lot and placed it outside the fence for another employee, thinking that this was off company property; plant rule prohibits use or consumption of alcohol on premises, and penalty is only "up to" and including discharge; appellant should have received mere oral reprimand if there was a violation at all).

Drug-testing

The UAW distinguishes between testing related to workplace health and safety and testing related to controlled substances.

McGlamory v Region 8, 5 PRB 449 (1988).

Email

Combs v Ford Department, PRB Case 1478 (5/26/04) (lewd email).

Entrapment

Snyder v Local 2031, 9 PRB 265, 269 n 2 (1996) (marijuana sale solicited by supervisor, appeal rejected),

Harris v Region 3, 11 PRB 537, 538-40 (2002) (described more fully elsewhere, appellant installed stolen company parts in co-employee's truck in the plant after which a supervisor gave him the keys and told him to drive it off company property; he did so and was fired immediately; part of the company's reason was that complying with the supervisor amounted to hiding the evidence; appeal rejected despite a report that over a year later the supervisor was still working).

Failure to perform job, efficiency, safety, work rules

Ponce v GM Department, 10 PRB 293, 298-99 (1999) (member with severe photophobia may not ignore company's safety policy prohibiting #3 and #4 rose tinted glasses),

Nash v GM Department, 11 PRB 268, 271 (2001) ("If personal safety motivated his refusal to obey his supervisor's instruction, it was his responsibility to raise the issue on the spot so that his objection could be evaluated."),

Taberski v Region 1A, 11 PRB 541, 544-45 (2002) (appellant claimed incident was merely horseplay, appellant did strike co-worker in the face after co-worker took appellant's cell phone, and fellow workers filed a contemporary petition stating appellant was a violent person and worse was yet to come),

Keith v Local 524, PRB Case 1458 (2/23/04) (ongoing problem of failure to keep up with production coupled with harassment of fellow employee meant decision not to arbitrate discharge of high-seniority member was not irrational),

Ferrell v Local 856, PRB Case 1492 (1/14/05), pp 5, 6, 8 (company standards, time-study),

Helton v National Heavy Truck Department, PRB Case 1541 (10/26/06), pp 5-6 (replacement of three air lines and one water line on a welding robot, circumstantial evidence, three-day suspension),

Burnes v UAW, PRB Case 1592 (9/3/08), pp 9-10 (appellant knew of work rule and deliberately violated it),

Thompson v Local 1292, PRB Case 1633 (10/28/09), pp 12-14 (retaliation for raising safety isues is grievable even if management did not violate the safety provisions of the contract, but appellant did not properly invoke the procedures under the health and safety memorandum, and there is no evidence that management retaliated aginast appellant in this case for raising a safety issue),

Furby v Chrysler Department, PRB Case 1636 (1/25/10), p 10 (possession of a valid hi-lo driver's license has no bearing on the question whether appellant could operate a hi-lo safely).

Fighting, threats, shoving, horseplay

With the exception of two decisions for one member noted elsewhere, these appeals have lost.

Gomez v Local 211, 5 PRB 257 (1987),

Jackson v Chrysler Department, 8 PRB 479 (1995),

McClain v Local 602, 9 PRB 496 (1997),

Greenslit v Local 2488, 10 PRB 101, 106 (1998) (shouting and cursing at group leader, while waving arms, and holding a long file and a pillar pick),

Johnson v Local 1292, 10 PRB 136, 139 (1998) (death threats),

Wischer v Region 1 10 PRB 411 413-14 (1999) (instigation of a fight),

Bryant v Local 14, 10 PRB 629 (2000),

Jurè v UAW, 11 PRB 150, 153-54 (2001) (member on LCA, who arrived at work appearing to be drunk, drove Hi-Lo so that fellow member could have been seriously injured, and made a threat of physical violence),

Vitti v Local 2000, 11 PRB 177, 182 (2001) ("We realize that Vitti's conduct may have resulted from his anxiety and depression. Even assuming this to be true, compassion for his condition is outweighed by the very real possiblity that failure to remove him from the plant might have fatal consequences to his fellow employees or members of Management."),

Mullins v Local 600, 11 PRB 284, 286 (2001) (company had statements from five witnesses saying appellant had used abusive language toward supervisor; appellant had statements of four witnesses saying they were witness to no act of abuse; PRB holds "stating that one did not witness any abusive conduct falls short of providing proof that it did not happen"),

Hills v UAW, 11 PRB 352, 360 (2001) ("In the past six years, we have been called upon six times to review the withdrawal of grievances of employees disciplined for hostile or threatening conduct towards management or their fellow employees. In each instance we have upheld the Union's decision."),

Taberski v Region 1A, 11 PRB 541, 544-45 (2002) (appellant claimed incident was merely horseplay, appellant did strike co-worker in the face after co-worker took appellant's cell phone, and fellow workers filed a contemporary petition stating appellant was a violent person and worse was yet to come),

Schillinger v Region 4 , PRB Case 1414 (4/17/03), p 7,

Long v Local 325, PRB Case 1422 (2/3/03), p 3,

Coyne v Regin 2B, PRB Case 1488 (9/2/05), p 8,

Nafus v Region 9, PRB Case 1531 (4/12/06), p 4 n 12, 7 (union had secured grievant's reinstatement from earlier discharge for altercation through arbitration, but grievant would not comply with reinstatement condition requiring anger management treatment, was charged with repeating conduct for which he was fired the first time, declared he would not curb his expression, and continued to vent anger at union representatives, thus raising reasonable doubts as to his ability to present a case as a witness to an arbitrator),

Lombard v UAW, PRB Case 1525 (11/15/06), reconsideration denied (1/20/07), pp 15-16 (noted elsewhere, in this appeal appellant was fired for fighting, but the facts showed the altercation involved no threats or blows, only angry talk instigated by the foreman; PRB denied the appeal because of "the concern of employers that they can be held liable if they do not act to prevent violent behavior in the workplace"),

Bryant v Region 5, PRB Case 1561 (3/21/07) (threatening),

Lawrence v Local 1405, PRB Case 1564 (4/17/07), pp 12-14 (member's statement in third hand language that anyone that did what fellow member did should be "taken out back and have the shit kicked out of them" while holding a box cutter worn down to only having a small part of the blade showing might well have been sufficient to sustain member's discharge in arbitration, so union's convincing of management that member was essentially innocent was a very excellent settlement),

Thomas v GM Department, PRB Case 1640 (3/8/10), pp 10-11 (in a worplace fight with a fellow employee appellant produced a knife resulting in injury).

What if the threat is non-physical, say if you threaten a supervisor with a lawsuit? In our society, anyone who thinks in good faith that there is a case has the absolute right to file a lawsuit. It follows that anyone who thinks in good faith that there is a case has the absolute right to threaten to file a lawsuit.

But in one appeal member Kenneth Mitz threatened to sue a contract supervisor during an altercation. Later the local civil rights committee concluded the supervisor had created a hostile working environment which was partially racially based. The PRB opinion doesn't specify it, but presumably the hostile environment would have been the basis of Mitz's intended litigation. Nothing in the decision indicates any bad faith on his part. Both men were aggressive, but neither was physically so. So Mitz should have had the absolute right to threaten the suit. But he was given the balance of the shift and three days off. The union settled the grievance by clearing his record and getting him paid, but only for one day. He had to eat the other days. The PRB held this was rational. The bottom line is that the right to threaten a good-faith suit is not absolute.

Mitz v Region 1D, PRB Case 1569 (5/8/07), pp 4, 6, 11-12.

Free speech at work

In a 2008 decision, member Doug Hanscom maintained a website, the "Disgruntled Autoworker," which was critical of the UAW's jointness programs with the car companies.

In 2004 GM gave him time off for posting an article it claimed contained non-factual information. The local grieved, the discipline was reduced to a written reprimand, and Brother Hanscom got backpay.

In 2006 Hanscom published another piece which included:

• "hundreds of union reps [are] liars, thieves, thugs and punks,"
• one particular union rep was "selfish,"
• members are appointed to jointness positions by virtue of being "relatives" of local union or management officials or they "kiss up, suck up, stroke, sleep with, do whatever" local union or management officials do to get those positions,
• "seniority is not a factor in Mgt's decision [choosing team coordinators]," and
• UAW and AFL-CIO officials "have their heads so far up corporate America's asses...."

The company claimed this was false and malicious, and gave Hanscom time off for violation of its plant rule 29. The rule prohibited publication of

false, vicious, or malicious statements concerning any employee, supervisor, the company, or its products.

Hanscom grieved. Management responded, saying his actions:

amount to a wanton, malicious verbal assault against GM and its employees, therefore possessing the potential of creating an angry, aggravated, anxious and hostile work environment.... Additionally, the grievant's actions were an attempt to polarize the Wilmington workforce by creating a division between recent transfers from closed facilities and long time Wilmington Assembly employees. His repeated us vs them reference and inferences are evidence of such an attempt.[footnote omitted]

...

As part of the orientation session ... the process for being promoted to Team Coordinator was throughly explained. As part of that explanation, seniority as a determining factor was discussed.

Union rep John Washington withdrew the grievance. He explained he "agreed with the Company's position" and "it was not a proper letter for Union members to be reading." He thought the website contained "false or malicious statements" about the members, "false and indefensible" comments about how team coordinators and UAW officials obtained their positions, and "profanity which I find very offensive."

Hanscom appealed. The IEB found that the website articles may on occasion cross from protected free speech to to an attempt to undermine the union or vilify members; but it also found the site's claims were harmless and no negative impact toward the union had materialized. It said the company on the other hand found the articles threatening to the work environment. It concluded the union would be unlikely to persuade an umpire the writings were harmless:

... The Umpire has ruled many times that the Union cannot supplant its beliefs for that of the Company's. Instead, Washington realized that an Umpire could render a ruling that would [be] detrimental to similar future cases, therefore, establishing bad precedent. Accordingly, after weighing the pros and cons of processing the grievance to the Umpire, Washington withdrew the grievance from the procedure.

Meanwhile Hanscom charged the company at the NLRB, which found merit in the case and scheduled a trial. As a result GM settled, paid Hanscom his lost time, removed the discipline from his record with a note "removed per grievance settlement," rescinded and replaced plant rule 29, and posted and distributed a notice saying it wouldn't repeat the conduct.

Hanscom requested and couldn't get a copy of the supposed grievance settlement. Union rep Washngton had told him there was no settlement. Hanscom appealed to the PRB, arguing that without documentation he might be disciplined again for the same conduct:

My intent is to use shop talk, as crude and colorful as it can sometimes be, to agitate the GOBs [locally-appointed union reps] and Yum Yums [UAW-appointed reps] while educating the membership about the devastating effect the UAW's partnership policies are having on our Union. I suppose my writings are inflammatory to GOBs and Yum Yums and they are intended to be. I hope to piss off the membership to the point where they decide to get involved and attend Union meetings, challenge incumbents, or just voice their opinions. I want to initiate any action that will replace the fear and apathy instilled in the members over the years by the GM/UAW joint partnership. GM claims that my newsletters threatened its employee/employer relationship. What the Company is really saying is that an uprising by its employees against the policies of the IEB would threaten its relationship with the IEB. GM hopes to forestall an inevitable uprising against a Union leadership that has betrayed its members and retirees for way too long, which is an act of collusion by GM to protect the IEB's dynasty and its joint relationship.

I believe that I have established that the language in my newsletters is nothing more than ordinary shop talk, that my descriptions of GOBs and Yum Yums and their actions are accurate from a shop floor perspective. The statement about the selection of Team Coordinators is based on my personal observations and those of my coworkers and a Committeeperson.

The PRB affirmed the IEB. It held it was powerless to tell the union to demand that GM explain a decision to grant a grievance. As to Washington's expression of personal irritation, it said he believed Hanscom's statements were false and he was entitled under the EPC to say that. The EPC does not obligate the union to arbitrate a grievance protesting an employer's interference with members' right to criticize the policies and personalities of union officials. Washington merely made an honest assessment.

As noted elsewhere, this is a peculiar result.

The PRB concluded with a comment on Hansom's goal that management cease future interference with his right to express his views:

That kind of protection cannot be obtained thourgh the grievance procedure. In a practical sense, it cannot be obtained at all. Appellant has to take into consideration how hurtful and insulting his comments are to some of his coworkers. Publishing statements such as those found on "The Disgruntled Autoworker" is going to make people angry. Indeed, Hanscom has acknowledged that his manner of expression is intended to make people angry. One expressing dissident views in a manner intended to be provocative cannot expect to be entirely insulated from the consequences of that provocation.

Hanscom v Region 8, PRB Case 1590 (8/29/08).

Grievance remedies

Grahek v TOP Department, 10 PRB 268, 274 (1998) ("The remaining remedy that Grahek seeks, monetary damages for time lost as a the result of emotional distress, is not available through the grievance procedure.").

High-seniority members

There is a presumption favoring arbitration of any discharge of a high-seniority member. Unless there are compelling facts ruling out any reasonable prospect of success the UAW will arbitrate. Compelling facts existed in one appeal where the member had 29 years. This is a good rule, but enforcement may be spotty. One member with six years was held to have "relatively high seniority" but another with almost eight years was held to have "relatively low seniority." The relative position of each on seniority lists was not noted.

Pocket guide, p 170;

Handbook, p 127,

Resnick v Local 906, 3 PRB 221, 228 (1981) (20 years, failure to report within 5 days, remanded),

Drake v Local 659, 4 PRB 84, 88 (1983) (14 years, failure to report as directed, remanded),

Hall v Local 735, 4 PRB 263, 266-67 (1984) (5 years, failure to report as directed, remanded),

George v Region 2A, 5 PRB 204, 209 (1987) (6 years held to be relatively high seniority, theft, remanded),

Humphrey v Ford Department, 5 PRB 285, 289 (1987) (7 years held to be high seniority, failure to report after receipt of five-day letter, remanded to grievance procedure),

Harris v Caterpillar Department, 6 PRB 122, 124 (1991) (22 years, absenteeism, appeal denied),

Moran v Agricultural Implement Department, 6 PRB 303 (1992), second decision 6 PRB 303 (1992) (16 years, absenteeism, remanded for arbitration with instructions),

Petersen v TOP Department, 8 PRB 289 (1994) (17 years, abuse of authority and of clients, remanded to fourth step of procedure),

Jackson v Chrysler Department, 8 PRB 479 (1995) (16 years, possession of weapon on company property, appeal denied),

Vogen v Local 900 I, 9 PRB 614, 621-23 (1998), later decision 9 PRB 624 (2000) reconsideration denied (7/19/00) (probationary, 3-day quit, remanded with instructions),

Newcomb v Local 1183, 9 PRB 636 (1998) (19 years, positive cannabinoid test, appeal denied),

Bryant v Local 14, 10 PRB 629, 629, 632 (2000) (11 years held to be long-term employee entitled to presumption for arbitration, assault, appeal denied),

Chase v Local 1231, 11 PRB 53, 59 (2000) (12 years held to be long-term employee entitled to presumption for arbitration, theft, remanded for arbitration with instructions),

Bladen v GM Department, 11 PRB 226, 228-29 (2001) (29 years, possession of marijuana in plant, appeal denied),

Davis v Local 882, 11 PRB 317, 319 (2001),

Acton v GM Department, 11 PRB 362, 365-66 (2003) (20 years, distribution of PCP, remanded for arbitration),

Gracia v Ford Department, 11 PRB 368, 372 (2001) (25 years, failure to respond to five-day letter, appeal denied),

Compton v Region 8, 11 PRB 393, 393, 398 (2002) (6 years held to be relatively short-term employee, threat, appeal denied),

Rogers v Region 9, 11 PRB 400 (2002) (21 years, assault, appeal denied),

Samuel v UAW, 11 PRB 526 (2002) (28 years, incarceration, appeal denied),

Folino v DaimlerChrysler Department, PRB Case 1415 (10/30/02) p 7 (29 years, theft, appeal denied),

Diem v Ford Department, PRB Case 1413 (12/2/02), pp 5-6 (1 year held to be short-term, no discrimination to reinstate high-seniority employees charged with same offense but not appellant, marijuana, appeal denied),

Keith v Local 524, PRB Case 1458 (2/23/04), pp 8-9 (16 years, refusing to do job assignment, appeal denied),

Garab v TOP Department, PRB Case 1461 (3/18/04), pp 5, 8 (22 years, abuse of co-workers and general misconduct, appeal denied because union settled for all that could have been achieved through arbitration, and contract did not provide for reinstatement of grievances),

Norris v Region 1A, PRB Case 1485 (2/10/05), pp 7-8 (almost 8 years, unjustified absence, appeal denied because there was no violation of contract in company's discharge of chronically absent "relatively low seniority" member on an LCA who did not call in on day of absence, who did not follow company procedures for absences, and who refused to sign a medical release form),

Clark v Local 325, PRB Case 1501 (4/18/05), pp 5-6 (15½ years, unjustifed tardiness, though member was entitled to receive careful scrutiny of the circumstances appeal denied because he was on an LCA, many of his absences were for medical reasons which while non-disciplinable would have made it difficult to convince the company to reinstate him, and the PRB has a history of denying appeals for high-seniority employees with chronic absenteeism and tardiness problems in the auto industry after corrective discipline),

Pairan v Region 3, PRB Case 1508 (6/24/05), pp 9-11 (17 years, sexual harassment, local tried to think of defenses, met with the company several times to try to get relief for grievant, but investigation only produced more evidence of objectionable conduct and grievant's incredibility, and grievant's conduct was not comparable to sleeping, arguing, fighting, or being intoxicated, not uttered in the heat of a work-related argument, and not unintentional)

Bays v GM Department, PRB Case 1538 (9/28/06), pp 8-9 (23 years, selling drugs, appellant admitted drinking beer in the parking lot and observing other employees using drugs, he failed to report the undercover agent's badgering of employees for drugs to the company or union, there was no evidence to contradict the agent's report of the sale, and the substance tested positive for amphetamine even if it could not have been admitted in a criminal trial),

McMillan v Local 659, PRB Case 1555 (5/7/07), p 14 (1 year, last-chance agreement, failure to comply with outpatient treatment program),

Parden v Region 1A, PRB Case 1585 (3/3/08), pp 10-13 (23 years, alcohol at work, blood alcohol level of .016 which is considered a negative result under the company's strict rule).

Incarceration

These appeals have almost never succeeded. But the PRB and CAC both have noted that if a member were cleared completely of the criminal charge leading to the incarceration he or she might win on the theory of circumstances beyond the member's control.

Green v Region 1D, 5 PRB 167, 170 (1986),

Ulmer v Local 735, 5 PRB 239, 241 (1986),

Duff v Region 8, 6 PRB 533, 535-36 (1992),

Johnson v Chrysler Department, 10 PRB 28, 30 (1998) (PRB acknowledges that acquittal on all charges could require UAW to argue circumstances beyond control to company),

Hines v Region 1, 10 PRB 424, 427 (2000) (PRB acknowledges possible correctness of appellant's statement that fellow inmates got jobs back at Chrysler and Ford),

Hunter v Local 218, 10 PRB 480, 482 (1999) (incarceration is not a satisfactory excuse for absenteeism over five days),

Culp v Region 1, 11 PRB 169, 173-75 (2001),

Samuel v UAW, 11 PRB 526, 529 (2002) ("Incarceration, unless shown that it was unwarranted, is not a reason beyond an employee's control that will excuse his failure to report for work."),

Russell v Region 1A, 11 PRB 550, 555 (2002) (a medical excuse will not suffice if it is not the real reason for absence),

Clark v Region 8, PRB Case 1513 (9/19/05), pp 5-6 ("We have consistently held that incarceration, unless shown that it was unwarranted, does not constitute a reasonable excuse for failing to report to work"; other member's return to work distinguished because he obtained a leave of absence before being incarcerated);

but see Drake v Local 659, 4 PRB 84, 88 (1983) (UAW witnesses testify that incapacitation by jail is satisfactory reason for failure to report for work),

Pappas v Region 1A, PRB Case 1602 (10/28/08), pp 5-7 (incarceration is not generally considered a satisfactory reason for failure to report to work under Ford agrement);

Wagstaff, CAC, session 11/95 (appellant was terminated for inability to report after state conviction for possession of marijuana; UAW withdrew grievance; appellant then faced federal prosecution for the same offense but the federal judge dismissed the case saying the police search was illegal; appellant has now petitioned the state court for release on the same theory; CAC puts appeal in abeyance pending outcome of state proceedings),

Cook, CAC, session 10/98 (appeal which was dismissed by IEB for failure of appellant to appear remanded by CAC because of evidence he did not receive notice of the IEB hearing and was incarcerated at the time).

Job assignment and duties

Rogers v Local 1714, 10 PRB 447, 450-51 (1999) (right to return to job after temporary assignment),

Vineyard v Region 1, 11 PRB 279, 282-83 (2001) (the contract reserves the right to management to make work assignments to employees),

Wilson v Local 1976, PRB Case 1573 (9/6/07) (management's assignment was within appellant's job description),

Furby v Chrysler Department, PRB Case 1636 (1/25/10), p 10 (appellant had begun to struggle with following instructions and performing his job assignments).

Jointness, grievability

In a 2007 appeal by a retiree attacking modifications of health-care benefits due to retirees under the GM national agreement, the appellant asserted the union was increasingly dependent on joint programs to maintain its operations. He noted the company's transfer of $7.8 million to the UAW for salaries in such programs in 1992, and the full-time compensation of over 100 UAW employees in them today. The PRB answered:

Indeed, Henderson's critique of the Union's jointly funded programs seems to justify the Union's concerns. The Union's concept of "partnering" with GM may be heresy to Henderson, but the current generation of union members has embraced a less adversarial approach to bargaining in recognition of the Union's and the Company's shared interests.

Henderson v GM Department, PRB Case 1568 (7/20/07), pp 8, 14;

see alsoCombs v Ford Department, PRB Case 1478 (5/26/04), pp 4, 8-9 (contract excluded from grievance procedure matters related to computers used by jointly funded job security and standards rep),

Ray-Barnett v Local 652, PRB Case 1496 (2/11/05), pp 8-9 ("[I]t does appear that the team concept is less adaptable to employees with disabilities than an arrangement where each employee has only one job to perform."),

Donovan v Ford Department, PRB Cases 1526, 1542 (10/25/06), pp 17-20 (though appellants presented a strong and sympathetic case in favor of modern operating agreements, this one was defined by product not by geographic location; the product is gone; PRB cannot order that a modern operating ageement be established in the unit to which appellants have been transferred),

Aston v Local 1714, PRB Case 1551 (1/24/07), pp 8-9 (new agreement in 2003 introduced team concept which encouraged flexibility and discouraged natural tendency to cling to the old way of doing things; though parties stated that agreement terms "should not be diluted with remnants of past practices, they also recognized that a certain period of transition would be necessary before the Team Concept it introduced would be entirely realized").

Last-chance agreements

A company sometimes will impose a last-chance agreement ("LCA") on a member claimed to have repeatedly violated company rules. Typically under an LCA, a member agrees that if he or she commits an infraction, however minor, the member can grieve only his or her guilt or innocence, and not the severity of the penalty, which can be discharge. LCAs are term-limited, often to a year. Grievances and appeals under LCAs usually lose, but not always.

Clark v Local 31, 5 PRB 246 (1987),

Newcomb v Local 1183, 9 PRB 636 (1998),

Robinson v Region 1D, 10 PRB 559, 562 (2000) (local had no breach of contract to assert, and could argue only for reinstatement on a last-chance basis, which the company refused),

Chase v Local 1231, 11 PRB 53, 60 (2000) (discharge grievance of member on LCA remanded for umpire hearing with instructions),

Jurè v UAW, 11 PRB 150, 153-54 (2001) (member on LCA, who arrived at work appearing to be drunk, drove Hi-Lo so that fellow member could have been seriously injured, and made a threat of physical violence),

Webb v UAW, 11 PRB 214, 217-18 (2001) (medical excuse for appellant, who was working under the terms of a conditional reinstatement, and left work station claiming medical exigency, covered period commencing two days after the incident),

Nash v GM Department, 11 PRB 268, 271 (2001) (given that appellant had been discharged twice previously and he was working under the terms of a conditional reinstatement agreement, the union could reasonably conclude it would not prevail before an umpire, so settlement on the basis of the balance plus 29 days and a new conditional reinstatment agreement was rational),

LeClerc v DaimlerChryster Department, 11 PRB 321, 325 (2001) (company allowed to amend rationale of discharge decision that he violated LCA to add rationale that he sold drugs on company premises),

Welch v Ford Department, 11 PRB 406, 409 (2002) (appellant prompted breathalyzer test by saying he felt unwell, and appearing to medical personnel to be intoxicated),

Body v UAW, 11 PRB 450, 452-53 (2001) (violation of third LCA),

Sholes v Local 659, 11 PRB 459, 464-65 (2002) (contradictions in appellant's account of problems with his log),

Samuel v UAW, 11 PRB 526, 528-29 (2002) (company would not grant third LCA),

Dickerson v UAW, 11 PRB 530, 535 (2002) ("[Under an LCA an] offense that might for another employee warrant no more than a reprimand can ... constitute what is in effect a capital industrial offense."),

Huber v Local 933, PRB Case 1412 (12/3/02), p 6,

Woods v Local 31, PRB Case 1416 (12/20/02), pp 4-5,

Derian v Region 2B, PRB Case 1424 (4/2/03), pp 3, 6 (letter of conditions which would have allowed member to sue company),

Anderson v Local 659, PRB Case 1484 (11/22/04), pp 8-9 (record does not support claim that union failed to investigate grievance adequately and present the case aggressively),

Norris v Region 1A, PRB Case 1485 (2/10/05), pp 7-8 (no violation of contract in company's discharge of chronically absent low-seniority member on an LCA who did not call in on day of absence, who did not follow company procedures for absences, and who refused to sign a medical release form),

Clark v Local 325, PRB Case 1501 (4/18/05), pp 5-6 (many absences of appellant who was on an LCA were for medical reasons which while non-disciplinable would have made it difficult to convince the company to reinstate him),

Frierson v Local 235, PRB Case 1545 (10/27/06), pp 4-5 (company's employee assistance program (EAP) confers no specific rights on employees, so appellant relinquished no rights when he was reinstated on an LCA without being informed of assistance available under EAP),

McMillan v Local 659, PRB Case 1555 (5/7/07), p 13 ("There is no explicit requirement in the last chance agreement that McMillan should seek outpatient care and there is a serious question whether his discharge would be sustained on the basis of an implicit requirement.").

Nash v GM Department, PRB Case 1583 (2/12/08), pp 14-15 (despite appellant being on LCA at time he left plant without permission, it appears that management did not actually intend to terminate him until his bizarre behavior at disciplinary interview),

Addison v Region 8, PRB Case 1600 (12/16/08), p 11 ("If the Company refuses to reconsider a discharge under [the terms of an LCA], the withdrawal of a grievance protesting the discipline cannot be said to lack a rational basis."),

Pappas v Region 1A, PRB Case 1602 (10/28/08), p 6 (employee discharged under LCA cannot challenge the discipline which led to the LCA),

Sallee v Local 933, PRB Case 1627 (6/25/09), p 7 (no basis for a grievance because appellant violated the terms of his LCA),

Furby v Chrysler Department, PRB Case 1636 (1/25/10), pp 2-3, 9-10 (conditional reinstatement letter);

Warmley v Local 600, CAC, session 6/81,

Johnson v UAW, CAC, session 6/82,

Wilson v Local 450, CAC, session 11/82,

Hester, CAC, session 3/93 (though on an LCA, appellant had nurse call plant within specified time, and doctor's slips covered entire period he was off).

Layoff

Konarske v Local 600, 6 PRB 452 (1992) (limitation on company liability),

Mattox v UAW, 11 PRB 485, 491 (2002) (according to arbitrator's ruling laid-off members hired at another plant lost their seniority at first plant, and this result held even though the parties later negotiated a one-time exception for another member),

Geniac v Local 12, PRB Case 1491 (1/14/05), p 5 ("It has always been the position of the UAW International Union that new technology may be inevitable. However, whoever performed the work manually in the past should continue to perform the work required by the new technology."),

Perez v Region 2B, PRB Case 1493 (2/10/05), pp 2 n 2, 6 n 19, 8-9 (where contract liberally allows layoff and performance of bargaining-unit work by non-bargaining-unit employees it was not irrational to drop nurse's layoff grievance due to elimination of position).

Lying to management

Frolichman v Ford Department, 6 PRB 382, 385-86 (1992) (lying on employment application, umpire ruling that company has one year within which to detect and discipline),

Baker v Local 892, 11 PRB 45, 51 (2000) (grievance of appellant accused of falsifying his attendance record, thus allowing him to apply for incentive pay, was settled rationally by persuading the company to cut his suspension by half),

Ilgenfritz v Local 2250, PRB Case 1630 (9/14/09) pp 7-8 (even though due to union vigilance appellant had a clean record at the time of the first of three suspensions, union's fear that management was setting appellant up for discharge justified its decision to settle the three on the basis of a clean record and no pay, where appellant admitting forging an excuse in one of the three instances).

Management rights

Laurin v Local 6000, 10 PRB 484, 488-89 (1999) (high-seniority member had layoff preference even if she lacks the interpretive skills posessed by appellant; management had the prerogative to determine appellant's job wasn't needed and abolish it),

Philip in the matter of Alexander v Region 4, 10 PRB 529, 531-32 (1999) (because company had sole right to determine number of hours to be worked and appellant had medically-restricted assignment, union could rationally compromise overtime grievance for fewer hours than appellant demanded),

Smith v Local 2190, 11 PRB 455, 457-58 (2002) (management may choose overtime oppotunities on the basis of "continuity on a a job").

Medical excuse

Novack v Region 1, 5 PRB 582, 585-86 (1988) (appellant may not selectively provide medical evidence to state agency but not to union),

Williams v Chrysler Department, 5 PRB 748, 753-54 (1990) (untimely offering of medical documentation explained by attendance counselor's telling appellant nothing could be done for him),

Sills v Local 9212, 10 PRB 108, 112-13 (1998) (alteration of medical excuses),

Baker-Williams v Region 3, 10 PRB 511, 516-18 (2000) (evidence is weak that doctor responded timely and properly to company's five-day letter, and despite depression appellant could have responded to it herself),

Webb v UAW, 11 PRB 214, 217-18 (2001) (medical excuse for appellant, who was working under the terms of a conditional reinstatement, and left work station claiming medical exigency, covered period commencing two days after the incident),

Reighard v UAW, PRB Case 1532 II (6/27/06), p 9 ("The fact that an appellant has been suffering from depression cannot by itself be held to warrant a waiver of the time limits on appeals involving the withdrawal of grievances.").

Vogen v Local 900 I, 9 PRB 614, 622 (1998), later decision 9 PRB 624 (2000) reconsideration denied (7/19/00) (employee must be given chance to supplement insufficient excuse with further evidence),

Rhodes v Local 699, 10 PRB 153, 157 (1998) ("[I]f depression [from five deaths in appellant's family] was his problem then it was also the solution, for certainly he could have applied for medical leave in order to treat the condition."),

Putnam v Local 1853, 10 PRB 275, 278 (1998) (appellant's original medical excuse was altered),

Vasi v Local 2000, 11 PRB 378, 383-84 (2002) (excuse must be timely and must explain why illness prevented member from working),

Dickerson v UAW, 11 PRB 530, 536 (2002) (excuse must be timely),

Russell v Region 1A, 11 PRB 550, 555 (2002) (a medical excuse will not suffice if it is not the real reason for absence),

Mitchell v Local 533, PRB Case 1456 (2/20/04), pp 7-8 (medical leave must be justified timely),

King v DaimlerChrysler Department, PRB Case 1574 (9/4/07), pp 11-12 ("[Appellant] truly seems not to understand the concept of honesty."),

Deliso v UAW, PRB Case 1578 (1/24/08), pp 8-9 (if appellant had objections to five-day quit letter she should have raised them at the time).

"Obey now, grieve later," insubordination

Kerr v Local 465, 9 PRB 344 (1997),

Kerr v Local 465, 9 PRB 651 (1998),

Nash v GM Department, 11 PRB 268, 271 (2001) ("The evidence that Nash intentionally refused to comply with a direct order from his supervisor is substantial."),

Schillinger v Region 4 , PRB Case 1414 (4/17/03),

Bertone v GM Department, PRB Case 1556 (2/21/07), p 8 ("It is the general rule of the workplace that an employee must comply with a supervisor's instructions and grieve those which he or she feels are improper."),

Mitz v Region 1D, PRB Case 1569 (5/8/07), p 12 ("It is a well-established rule of the workplace that an employee must comply with a supervisor's instructions and grieve those which he or she feels are improper."),

Addison v Region 8, PRB Case 1600 (12/16/08), pp 12-15 (it is difficult to understand how appellant could have been ignorant of a policy with which all the other employees were complying especially where another employee had been fired for violating it; so if appellant didn't know about the policy it was because he didn't want to know and his violation amounted to defiance),

Lartigue v Region 1, PRB Case 1622 (6/2/09), pp 6-7 (after company denied local president's request for union leave, her only option was to report for work and file a grievance).

Overtime

Eckerle appealing Harrison v Local 151, 5 PRB 311, 313-14 (1987),

Scarlett v UAW, 5 PRB 409, 411 (1987),

Warner v Local 599, 6 PRB 165 (1991),

Grant v Local 163, 6 PRB 472 (1992),

Cammarata v Local 400, 10 PRB 435 (2001) (appellant and comparator member work on different shifts and appear on two different overtime lists),

Philip in the matter of Alexander v Region 4, 10 PRB 529, 531-32 (1999) (because company had sole right to determine number of hours to be worked and appellant had medically-restricted assignment, union could rationally compromise overtime grievance for fewer hours than appellant demanded),

Holet v Local 467, 10 PRB 538, 540-41 (1999) (appellant had not completed training which would have entitled him to share equally in overtime; union was nevertheless able to get certain concessions from management in his favor and an umpire could not have provided him with more),

Keevis v Local 235, 11 PRB 12, 14 (2000) ("Such contractual ambiguities offer the opportunity for compromise, and this is what has happened here."),

Williams v Local 7, 11 PRB 429, 433 (2002) (grievance had no basis in fact and no contractual merit),

Smith v Local 2190, 11 PRB 455, 457-58 (2002) (management may choose overtime oppotunities on the basis of "continuity on a a job"),

Patterson v Local 848, PRB Case 1509 (5/12/05), pp 8-9 (in the face of appellant's persuasive argument for his interpretation of the contract the local relied on the experience of long-serving past officials and the plant's firmly established past practice regarding distribution of overtime, a practice which the company argued was not changed by the current contract),

Palmer v Local 668, PRB Case 1559 (4/16/07), pp 8-9 (union properly surveyed members as to whether they prefered use of flextime in lieu of overtime; appellant did not show management had used flextime to undermine standards of 40-hour week and 8-hour day; flextime policy mutually served management and members),

Aston v Local 1714, PRB Case 1551 (1/24/07), pp 8-9 (though settlement of equalization-of-overtime grievance under 1999 contract was never put into writing, 2003 contract introduced team concept which favored flexibility and included a transition period, so it was reasonable for union to conclude 2003 contract did not require union to abandon settlement agreement),

Gillert v Local 594, PRB Case 1591 (6/10/08), pp 11-13 (GM was permitted to subcontract work on premium days rather than assign it to appellants because the work was not normally and historically done at appellants' location),

Breckenridge v Region 1A, PRB Case 1596 (9/4/08), pp 7-8 (fact that third shift employees punch out at 7:00 am on Sundays and so have no chance to earn double time for that Sunday is due to longstanding consistent practice at this location and is therefore not irrational).

Past practices

While they can help to clarify or explain contract language, past practices and oral expressions may not be used to supplant or supplement clear and unambiguous language of an agreement, particularly where management has given notice that practices deviating from contract language will no longer be permitted. Grievance-handling involving company past practices is discussed elsewhere.

Rivett v Local 699, 9 PRB 391, 394-95 (1998) (history of collective bargaining relationship with GM relating to skilled trades controls decision of appeal, even though the language of the contract can be read in such a way as to refute the union's position),

Tate v DaimlerChrysler Department, 11 PRB 16, 18 (2000) (collective bargaining agreement dynamic not static),

Krueger v Ford Department, PRB Case 1417 (12/18/02), p 6 (past principles and practices may not supplant or supplement clear and unambiguous contract language),

Genshaw v Local 5960, PRB Case 1447 (11/20/03), p 9 (clear and unambiguous written agreement cannot be varied by oral expression),

Morgan v Local 832, PRB Case 1462 (1/13/05), pp 4, 8-11 (PRB inquires as to past practice but ultimately decides appeal based on arbitration decisions),

Patterson v Local 848, PRB Case 1509 (5/12/05), pp 8-9 (in the face of appellant's persuasive argument for his interpretation of the contract the local relied on the experience of long-serving past officials and the plant's firmly established past practice regarding distribution of overtime, a practice which the company argued was not changed by the current contract),

Espinosa v Local 719, PRB Case 1511 (9/6/05), pp 6-7 (nine-year temporary employee not treated as permanent for purposes of eligibility to run for shop committeeperson),

Appeal of Bellew, PRB Case 1558 (3/20/07), pp 8-9 (responsibility of placing members whose plant closed is jointly company's and union's; company manpower is an important element; accommodation of the preference of 85 members by seniority is hardly possible; appellant has not demonstrated existence of past practice that high-seniority members can select the plant where they will go and it would difficult to even speak of such a practice),

Gillis v Local 1976, PRB Case 1611 (2/24/09), p 8 (established past practice that full-time employees cannot bump part-time employees).

Penalty, progressive discipline

Robinson v Region 1D, 10 PRB 559, 562 (2000) (local had no breach of contract to assert, and could argue only for reinstatement on a last-chance basis, which the company refused),

Gardner v Local 653, 11 PRB 40, 43 (2000) (it was rational for the shop committee to compromise appellant's discharge grievance by returning him to work without pay after five months, given that much later umpire might have reduced the discharge to a disciplinary leave equivalent to time served),

McAuley v GM Department, 11 PRB 474, 481 (2003) (not irrational to settle discharge grievance by allowing member to be reinstated for the sole purpose of applying for total and permanent disability),

Sparrow v Local 1250, PRB Case 1457 (2/23/04), pp 9-10 (difference in penalties assessed varying employees justified by differences in nature of offenses),

Wilson v Region 1C, PRB Case 1502 (9/6/05), p 3 (union properly withdrew grievance of appellant fired after final warning for failing to sweep the floor),

Cullens v Local 7777, PRB Case 1506 (6/23/05), p 6 (uncontradicted employer assertion that warning letter was not a step in progressive discipline provided rational basis for union to withdraw grievance short of arbitration),

Pairan v Region 3, PRB Case 1508 (6/24/05), pp 10-11 ("The progressive discipline appropriate to address minor shop rule violations, however, may not be appropriate in cases where a pattern of sexual harassment has been established, because of the employer's responsibility to its employees to provide an environment free of this kind of harassment."),

Greene v Local 7777, PRB Case 1560 (3/21/07) pp 10-11 (though company may have violated the precise terms of the point system in its attendance and progressive discipline policies, the system was never strictly enforced; appellant's absenteeism was excessive enough that the union could rationally conclude that an arbitrator would have refused to reinstate him),

Lacey v Region 1, PRB Case 1577 (1/24/08) pp 4-5 (though discharge due to misunderstanding in cashing stale check was harsh, contract exempts violations of variance policy from progressive discipline);

Patton, CAC, session 3/02 (CAC remands in part because shop rules mandated a lesser penalty than discharge for a first offense),

Hendley v Region 1, PRB Case 1628 (1/25/10), pp 3-4, 7, 10-12, 16-18 (where appellant had left the plant for 12 minutes without punching out, the company rule requiring punching out had been announced during a production meeting and posted in the plant though appellant didn't attend the meeting and didn't see the posting, the contract had no system of progressive discipline, the arbitrator can only enforce the contract as it is written, and the union obtained a $5000 settlement offer from company which appellant rejected, the union acted rationally in withdrawing the discharge grievance, despite IEB testimony of two fellow members who said they too continually left the plant for short periods without punching out and they continued to do so for three years after appellant was fired).

Plant closings, work transfer, sale of company

In one plant closing appeal member Russell Thomas challenged the union's failure to obtain members' accrued vacation pay. Defending, the president's office set out a thoughtful discussion of the problems the union faces generally in these situations. The PRB endorsed it:

When confronted with the closure of a business by a small employer such as Hydraulic Accessories Company, where there remain unpaid obligations which the employer is unable or unwilling to pay, the UAW’s experience has been that it is not to the employees’ advantage to force an involuntary bankruptcy pursuant to Chapter 7 of the Bankruptcy Code. In the first place, Chapter 7 liquidations involve administrative costs which deplete the assets available to pay the employees’ claims. Furthermore, unpaid obligations to employees fall behind claims of secured creditors, administrative claims and professional fees in accordance with the priorities established by the Bankruptcy Code. Sadly, in liquidations under the Bankruptcy Code, it is not at all uncommon for valid pre-petition wage and benefit claims to go unpaid.

Many times a small employer will simply allow the secured creditors to foreclose on the remaining assets of the business, rather than declaring bankruptcy. In such a situation, the employer and its creditors generally understand that the distribution of the employer’s remaining assets must be consistent with the priorities outlined in the Bankruptcy Code. If these priorities are not observed, the secured creditors could get together and force the business into bankruptcy pursuant to Chapter 7. The priorities outlined in Chapter 7 give a modest priority to certain claims of employees over the claims of general unsecured creditors. In the case of vacation pay, this priority is limited to claims earned within 90 days of the bankruptcy petition. Claims related to unpaid contributions to employee benefit plans arising within 180 days prior to the petition also receive priority over general unsecured claims. Even claims for vacation pay or contributions to employee benefit plans falling within the stated periods still come after the claims of secured creditors and administrative expenses.

Deductions from employee paychecks for contributions to benefit plans, withholding taxes, and union dues are a special category. Employers on the brink of liquidation often deduct these amounts but fail to transmit the money to the proper recipient. Instead, the employer uses the money to pay immediate demands of creditors to avoid termination of a utility, eviction by a landlord, or foreclosure by the banks. In situations where the employer has deducted money from employee paychecks and used those funds to pay other creditors, the UAW has with some success argued that the employer has actually committed a crime by converting the employees’ money to its own use. The employer and its secured creditors will sometimes accede to the Union’s demand that deductions for benefit plans or Union dues be paid to the proper recipient even where the secured creditors’ claims have not been paid in full.

The Union can sometimes find a secured creditor or former owner of the liquidated business who is willing to discuss making payments toward employees’ claims. When there are assets available to make any payment at all, the liquidating employer will generally insist that any payment on employees’ claims be acknowledged in an agreement in which the Union consents to the payment and agrees not to pursue additional claims. Such an agreement may be termed a “closing agreement” in that it brings a formal end to the relationship between the employer and the employees, but it is more in the nature of a grievance settlement than a collective bargaining agreement. Therefore, no formal ratification of such an agreement would be required.

Thomas v Local 155, PRB Case 1543 (1/24/07), pp 8-11.

Other decisions follow.

Stephens v Champion Department, 4 PRB 349 (1985) (plant closing agreement),

Local 677 v Mack Truck Department, 5 PRB 107, 112-13 (1986) (right of local A to ratify local B's grievance settlement which affected seniority rights of members of local A),

Taylor v Local 600, 5 PRB 135, 138, 139, 141 (1987) (compelling union witnesses to attend arbitration),

Belue v UAW, 5 PRB 399 (1987) (administratorship, elections),

Morris v Local 549, 6 PRB 137 (1991) (seniority),

Kruckeberg v Local 2250, 6 PRB 528 (1993) (seniority),

Thompson v GM Department, 9 PRB 64 (1996) (sale of operations, no right to ratify MOU, discussed elsewhere),

Madden v UAW, 11 PRB 28 (2000) (major transfer of operations, appealability of national department's obviously correct interpretation of a contract),

Gaul v Local 488, 11 PRB 202, 207 (2001) (there being no contractual support for appellants' grievance, and the union not having the option of striking locally as it did successfully in 1998, the union had no leverage and had to withdraw the grievance protesting implementation of a special attrition plan),

Anderson v Local 488, 11 PRB 293, 296 (2001) (limitation on number of highly-desireable "Document 117" retirement options offered in plant closing),

Schick v UAW, 11 PRB 415, 420 (2002) (though appellants have 30 years of seniority and were treated less favorably than so-called new hires after an optional transfer, they elected a buyout of some $30,000 while new hires had no buyout and their transfer was required),

Ratkos v Local 651, PRB Case 1530 (2/14/06), pp 13-15 (in face of claim local Delphi East JOBS committee was motivated by desire to protect the native workforce, it had discretion to place transferrees from Delphi Livonia and Delphi West into JOBS bank instead of allowing them to bump active incumbent Delphi East members, because the GM national agreement does not provide company-wide seniority rights and local JOBS committee had discretion to ensure orderly transition),

Donovan v Ford Department, PRB Cases 1526, 1542 (10/25/06), p 19 (when the VX-54 program left the plant it was not a plant closure, but a transfer of operation anticipated under the national contract, and was unchallengeable),

Appeal of Bellew, PRB Case 1558 (3/20/07), pp 8-9 (responsibility of placing members whose plant closed is jointly company's and union's; company manpower is an important element; accommodation of the preference of 85 members by seniority is hardly possible; appellant has not demonstrated existence of past practice that high-seniority members can select the plant where they will go and it would difficult to even speak of such a practice),

Evans v Ford Department, PRB Case 1579 (1/25/08), pp 13-15 (there is no local right to vote on Ford department's decision to interpret "date of hiring" language in national agreement to mean date of hiring by Ford not date of hiring at particular physical location).

Pornography at work

Francis v GM Department, PRB Case 1587 (10/29/08), pp 16-22 (appellant and likely others had access to computer with downloaded pornography, evidence supports that appellant did so despite his denial and that others did too, evidence supports that appellant's health and safety grievance had no connection to his discharge, so settlement for appellant's job without backpay was rational).

Probationary and at-will employees

These appeals have failed, except where the probationary was entitled to just-cause protection. In particular, employees who sign acknowledgements that they can be fired at any time have no protection.

Smith v Local 155, 5 PRB 97 (1986) (89 days),

Bailey v Region 1A, 5 PRB 305 (1987),

Ali v Local 1776, 6 PRB 32 (1990) (63 days),

McClain v Local 602, 9 PRB 496 (1997) (85 days),

Vogen v Local 900 I, 9 PRB 614 (1998), later decision 9 PRB 624 (2000), reconsideration denied (7/19/00) (87 days, just-cause protection, member followed exactly the instructions given him by the personnel office),

Holycross v Local 662, 10 PRB 523 (2000), (company could fire temporary employee who signed union-approved acknowledgement that she could be terminated at any time, despite that she was on disability leave at the time),

Werts v Local 6000, 10 PRB 542, 546 (1999) (85 days),

Smith v Region 3, 11 PRB 507, 509-10 (2002) (company conceded it would not have discharged member had she had seniority, but she had only 81 days and probationary employees are subject to stricter rules, including that they can be fired for missing days even when they have a debilitating physical condition).

Profit sharing

Hodges v Local 600, PRB Case 1618 (6/2/09), p 11 (where profit sharing plan excluded extraordinary or infrequently occurring items from calculation of profits, one-time payment by supplier was not profit, even though company described it as profit to investors).

Promotions

Cooper v Local 163, 4 PRB 200, 205 (1984) (management pre-qualifying junior members for promotion, based on contractually-allowed "merit, ability, and capacity"),

Cronenwett v UAW, 10 PRB 232 (1998) ("{The contract provides] that in determining who should receive a promotion, seniority comes into play only when two or more applicants are qualified for the position."),

Allen v Region 3, 10 PRB 238, 241 (1998) (whether an individaul is qualified for a journeyperson card is a matter of bargaining policy),

Wright v Local 659, 10 PRB 248, 254-55 (1999) (protested member had more seniority and was more qualified),

Collar v Local 413, 10 PRB 384, 388-89 (1999) (management did not regard the appellant and the protested employee to be relatively equal in skills and abilities),

Tate v DaimlerChrysler Department, 11 PRB 16, 18 (2000) ("[Appellant's] employer has the contractual right to determine what qualifications are required for promotion to a given position."),

Barrett v Local 599, 11 PRB 23, 26 (2000) ("[S]eniority becomes the determinative factor only where 'ability, merit and capacity are equal.'"),

Powell in the matter of Stewart v IEB Region 3, PRB Case 1466, p 9 (3/18/04) (pursuit of grievances by committeeman was not unbecoming despite that grievances challenged appellants' promotion to the carpenter trade),

Jones v Region 2B, PRB Case 1581 (2/12/08), pp 8-9 (appellant lacked posted qualifications, and there was no contractual basis for the union to insist that the company give him a chance to learn the journeyman job);

Luna v Local 600, CAC, session 6/82 (appellant's failure to meet precisely the procedures for bidding for job was not sufficient grounds to deny him promotion, in light of admission that if he had been given the opportunity to bid he could have been the one selected).

Public employers

Sarkissian v Local 6000, 5 PRB 624, 629-30 (1989) (PRB accepts credibility finding of civil service judge),

Morgan v Local 6000, 6 PRB 1, 4 (bargaining with public employer),

Sundquist v Local 6000, 6 PRB 215 (1991) (secretary),

Gray v Local 6000, 9 PRB 31 (1995) (layoff of state mental health employees at children's center),

Werts v Local 6000, 10 PRB 542, 546 (1999) (state probationary employee),

Pilgrim v Local 6000, PRB Case 1521 (10/26/05) (discharge of corrections officer),

Dedic v UAW, PRB Case 1562 (7/20/07), p 4 (referencing administrative letter re dues of public employees);

administrative letter, volume 43 # 3 (9/28/92) (amalgamated public/private local's per capita tax obligation in light of prohibition of strikes by public employees).

Quit versus discharge

Drake v Local 659, 4 PRB 84, 87 (1983),

Eutsey v Region 2A, 5 PRB 211 (1987),

Humphrey v Ford Department, 5 PRB 285 (1987),

Jodlowsky v UAW, 5 PRB 463 (1988),

Vogen v Local 900 I, 9 PRB 614, 621-23 (1998) (though sick and having a medical excuse in hand appellant went to company labor relations before his starting time to display medical excuse and obtain a call-in number, termination was for being a three-day quit; even though nurse clinician's excuse was arguably insufficient to show inability to work company did not point out insufficiency and give appellant an opportunity to supplement it with further evidence),

Carroll v Region 1A, PRB Case 1472 (5/26/04),

Deliso v UAW, PRB Case 1578 (1/24/08), p 9 (five-day quit letter),

Neely v Region 3, PRB Case 1601 (4/21/09) (appellant raised significant issues regarding the reasonableness of her reliance on nurse's promise to fax certificate of disability to company in response to five-day quit letter, and the reasonableness of company's decision to send letter).

Retirees

Bee v Local 719, 10 PRB Case 1, 4-5 (1998) (appellant's retirement and court-enforced agreement to release company from all claims barred union from further prosectuion of pending grievances),

McAuley v GM Department, 11 PRB 474, 481 (2003) (not irrational to settle discharge grievance by allowing member to be reinstated for the sole purpose of applying for total and permanent disability),

Samuel v UAW, 11 PRB 526, 528-29 (2002) (on company's refusal to grant 28-year appellant a third LCA, union rep tried unsuccessfully to convince the company to grant two years further service so he could retire with full benefits),

Gordon v Local 1112, PRB Case 1594 (6/11/08), p 7 (PRB rejects appeal of a member claiming the pre-retirement program was applied unfairly to him),

Brogdon v Local 719, PRB Case 1625 (6/25/09), p 7 (appellant is bound by the paper he signed; he did not postpone his retirement under duress; he postponed it to protect his workers' compensation benefits),

Furby v Chrysler Department, PRB Case 1636 (1/25/10), p 9 (appellant's election to retire was irrevocable),

Thomas v GM Department, PRB Case 1640 (3/8/10), pp 10-11 (at umpire stage union got appellants a good settlement allowing him backpay and a full retirement, after a workplace fight with a fellow employee where appellant produced a knife resulting in injury).

Seniority, "dividing scarcity"

There are two different types of seniority:

[Appellant's] UAW/GM seniority commenced with the date he qualified to be a seniority employee at Coit Road, October 8, 1962, and that date has never changed. His GM benefits, pension and vacation entitlements all stem from that date. On the other hand, what the Union terms "competitive seniority", the seniority that governs such matters as layoff and recall, shift preference and, in certain circumstances, promotion opportunities is not fixed, but may change many times depending upon employment circumstances.

Veneziano v Local 549, 11 PRB 197, 200 (2001).

The time limit for filing a seniority appeal begins to run when the the seniority decision affects the appellant, not when the appealed seniority provision was negotiated.

[Appellants] apparently have not actually been personally impacted in their plant by the decision.... At this point any effect upon them is only potential. [footnote omitted] For this reason alone, their appeal should have been dismissed as premature.

Martin v Local 699, 9 PRB 374, 380 (1997);

see also EP complaint of Placido, 2 PRB 165, 170 (1974) (appeal of seniority agreement not untimely because claims are continuing),

Berry v Local 600, 4 PRB 53, 56 (1983) (seniority issue became appealable when appellant was displaced, not when the seniority provision was negotiated),

Santos v UAW, 8 PRB 249, 252 (1994) (time period to appeal action on a seniority issue begins to run when appellant learns of the action, not the reasons for it).

Other seniority appeals:

EP complaint of Trapane, 3 PRB 15, 25-26 (1980) (quick ratification of new contract by junior members without notice to 120 fired senior members holding preferential recall rights which were vacated by new contract, approved),

Berry v Local 600, 4 PRB 53, 57 (1983) (bargaining discrimination in favor of members in one classification who are numerically superior and have great political influence, against members in another clasification who are numerically inferior and have less political influence, would be invidious and remediable by the PRB; but the facts here do not show such discrimination because the disputed agreement is over 20 years old and members in the disfavored classification has less skill and less seniority),

Sneath v Local 1309, 5 PRB 299 (1988) (revocation of union officer's preferred seniority status upheld),

Shelton v Local 1112, 5 PRB 571, 575 (1988) (seniority claims generally not pursued beyond term of agreement under which they arose),

Quintana v Local 719, 6 PRB 155 (1991) (adjusted seniority dates),

Smith v Local 699, 6 PRB 168, 181 (1991) (effect of umpire seniority decision on non-grievants, "dividing scarcity"),

Gumhold v Local 677, 6 PRB 189, 191 (1991) ("Issues of health and safety of the workforce as well as its productivity are too important to be left to the caprice of seniority"),

Gartin v GM Department, 6 PRB 256 (1991) (area hire list),

Long v Local 22, 10 PRB 206, 211-12 (1998), supplemental decision, 10 PRB 216, 220-21 (1999) (area hire),

Laurin v Local 6000, 10 PRB 484, 488-89 (1999) (high-seniority member had layoff preference even if she lacks the interpretive skills posessed by appellant; management had the prerogative to determine appellant's job wasn't needed and abolish it),

McNeal v Ford Department, 10 PRB 504, 508-09 (2000) (grievance settled for 20-month improvement in appellant's seniority date, appeal for backpay denied because of contractual limit on backpay in non-disciplinary non-pay-shortage grievances),

Reed v UAW, 10 PRB 568, 573 (2002) (junior members working while senior member laid off),

Veneziano v Local 549, 11 PRB 197, 200-01 (2001) (appeal rejected because (1) appellant's seniority rights under a contract between GM and the Patternmakers League of North America have nothing to do with his seniority rights under a GM-UAW contract, and (2) appellant had relinquished recall/rehire rights in exchange for $5000),

Hornbuckle v DaimlerChrysler Department, PRB Case 1401, p 7 (10/18/02) ("[S]eniority is [not] a fundamental law that governs the employer/union relationship"; retirement option not offered to senior member because he was productive),

Miller v Ford Department, PRB Case 1427 (3/19/03) (junior members working while senior member laid off),

Strohmeyer v GM Department, PRB Cases 1434 and 1439 (12/22/03), pp 5-6, 20-23 (in one appeal contract interpretation was obviously correct because individual negotiators have no authority to deviate from terms of nation agreement; in other appeal IEB ruling avoided disparate treatment and GM department reamains willing to correct errors where it can be shown adjusted seniority date is incorrect),

Powell in the matter of Stewart v IEB Region 3, PRB Case 1466 (3/18/04), p 9 (committeeperson is not subject to charges for pursuing seniority grievances even though pursuit will be detrimental to interests of other members),

Long v Local 2089, PRB Case 1469 (4/27/04), pp 5-6 (when PPM job position was posted in maintenance classification no one challenged successful bidder's right to accrue seniority, so when PPM job was changed later to no longer accrue seniority, shop committee's determination that successful bidder did not forfeit seniority earned to date was rational),

Sasaki v Local 1853, PRB Case 1524 (12/21/05), pp 12-13 (local had no authority to negotiate corporate seniority dates, and it would have been unfair to other GM employees to restore GM corporate seniority to Saturn employees),

Ratkos v Local 651, PRB Case 1530 (2/14/06), pp 13-15 (in face of claim local Delphi East JOBS committee was motivated by desire to protect the native workforce, it had discretion to place transferrees from Delphi Livonia and Delphi West into JOBS bank instead of allowing them to bump active incumbent Delphi East members, because the GM national agreement does not provide company-wide seniority rights and local JOBS committee had discretion to ensure orderly transition),

Eardley v Local 1112, PRB Case 1535 (6/28/06), pp 6-7 (WEMR and electrician trades are "related" and in fact the same at appellant's plant, so seniority established in one trade is the same as seniority established in the other),

Harmon v Region 1A, PRB Case 1539 (9/27/06), p 7 (Visteon national agreement precludes a member hired into a classification not covered by the agreement from asserting seniority rights for time spent in that excluded classification, and union's view that this controls the tie-breaker language at the Monroe plant is consistent with the contracts and past practice),

Appeal of Bellew, PRB Case 1558 (3/20/07), pp 8-9 (responsibility of placing members whose plant closed is jointly company's and union's; company manpower is an important element; accommodation of the preference of 85 members by seniority is hardly possible; appellant has not demonstrated existence of past practice that high-seniority members can select the plant where they will go and it would difficult to even speak of such a practice),

Sears v Local 1292, PRB Case 1612 (2/24/09), pp 11-12 (though local could have put forward a theory to support appellant's position that company should have allowed him to level in from inverse seniority layoff so he could apply for a special assignment at another plant, and though the issue has been addressed going forward by giving notice to employees on inverse seniority layoff when similar job opportunties arise, in the absence of a clear contract violation the committeeperson persuasively explained that if these assignments began to generate a lot of grievances, the entire program of using bargaining unit employees rather than outside contractors to do them could be jeopardized).

Sexual/racial harassment

General discrimination, nepotism, and disparate treatment is discussed elsewhere.

Administrative letter on the elimination of workplace sexual harassment, volume 47 # 5 (11/2/98);

Grahek v TOP Department, 10 PRB 268, 269, 273 (1998) (taken from its context, the meaning of a supervisor's comment that she had no problem with choosing appellant for position "as long as he wears a short skirt" is ambiguous),

Harris v Local 2123, 10 PRB 490, 498-501 (2000) (member had unfair amounts of overtime assigned, her protests made one or more co-workers hostile, of which she grieved, but local took effective measures, making recommendations, all of which were accomplished; as for harassing fellow member, the PRB recommended article 31 charge should harassment recur),

McAuley v GM Department, 11 PRB 474 (2003) (white member, disciplined frequently by younger black supervisor, later went to supervisor's car in the parking lot, saying he was looking at it because he had seen a similar car passing by his house recently and he wanted to get its license number to give to his local neighborhood watch; his story had inconsistencies and the supervisor said the member threatened him in the parking lot and followed him; held it was not irrational to settle the grievance to allow member to apply for total and permanent disability),

Zavadil v Ford Department, PRB Case 1407 (3/19/03) (pregnancy discrimination),

Sparrow v Local 1250, PRB Case 1457 (2/23/04), (member with a disciplinary record of a racial slur, who insulted a member sexually, and was fired and came back without backpay, argued others had been treated less severely under the company's zero-tolerance harassment policy; PRB distinguishes other instances on basis that they occurred in the context of work-related argument or that sexual or racial content was not intended),

Torres v Local 594, PRB Case 1470 (5/25/04) (supervisor made a hostile vulgar racist statement to appellant and was removed, appellant received threatening phone calls, company gave her caller ID, for 17 days she was denied an entitled job assignment to which seniority entitled her, shop committee waited four months to file a harasssment grievance, later appellants grieved mistakes in overtime equalization and management corrected them, after local civil rights committee investigation local settled harassment grievance on basis of plant-wide training on worker environment, PRB approved settlement given that no specific problem remained pending),

Pairan v Region 3, PRB Case 1508 (6/24/05), pp 9-11 (because of employer's responsibility to provide a harassment-free environment, credible claim that male member touched female member on inside of her leg with a broom handle up to her crotch, that he said he would put money in her underwear with his mouth, that he showed her pictures of himself naked, that he put his groin into her butt several times, and that he had told women graphic details about his sexual experiences, all while at work, meant the union rationally withdrew his discharge grievance, even though he had not been previously warned about sexual harassment, and even though complaints against other members about sexual harassment in the past had resulted only in 3-5 day discipline).

Skilled trades

The UAW is proud of its skilled trades progam. The president's office explained while defending a 1998 appeal:

The UAW skilled trades card is a symbol of the successful attainment, either as an apprentice or by experience, of journeyman status. It states that this member is qualified completely to work as a journeyman in his or her field. The UAW is proud of its program which is a testament to the quality of a certified employee's work and to the hard work put forth to obtain this status.

A journeyman card remains the property of the UAW....

Estes v UAW, 9 PRB 555, 560 (1998).

Later that year the union lost its enthusiasm:

But then of what use is such a card, for as the Union has pointed out, an employer has 90 days in which to reject the possessor of the card as incompetent.

Berryman v Skilled Trades Department, 10 PRB 222, 227 (1998).

The difficulties of sorting out skilled-trades demarcation and seniority issues were illustrated by a series of PRB decisions in GM cases in 1997-99. Traditionally the UAW opposed consolidation of trades, but that was in the 20th century. Times have changed. Consolidation was implemented and demarcation lines blurred. "Relatedness" of certain trades was deprecated. "Appendix A" was negotiated, providing 1985 seniority for large numbers of skilled members. The main purpose was to achieve "efficiency," and certain adjustments were also made in the name of fairness. Sometimes the results were contradictory, generating anger and frustration. "But life is sometimes unfair," the PRB answered. It approved the changes.

To start, three decisions arose from Local 699. Oral argument was heard, and all were decided the same day. The first involved Ronald Rivett. He started as a machine repairman at Delphi and transferred into the tool inspector classification in 1991. Under various agreements in the following years other members also transferred from various classifications and became tool and die makers. They were awarded 1985 seniority dates, to which Brother Rivett objected. A grievance was refused and he appealed. He said:

he is being treated unfairly vis-a-vis late comers to the IF6J Inspection classification who were allowed to bring with them their January 7, 1985, seniority dates while he was not.

The Inspection Trade designated as IF6J is a non-apprenticeable classification. Indeed, we are able to find no reference to inspection of any type in the parties' apprentice training schedules. Neither is there any reference to inspection in the Skilled Trades Department's [non-contractual] list of basic trades.

Initially the PRB granted the appeal, saying the union's logic was "totally irrational [and] ... discriminatory." But it invited the UAW to seek reconsideration, saying:

This is the first time in our history that we have ventured so far in the labyrinthine passages of the world of skilled trades. Caution is advised lest we have missed some obvious point, or misunderstood some argument that to the initiated would be obvious and dispositive.

Rivett v Local 699, 9 PRB 382, 389 (1997), modified 9 PRB 391, 393 (1998).

The second decision was Martin. Appellants there conceded their trades and those of the protested employees were "related." But:

The decision to grant January 7, 1985, seniority to the former single-purpose people was devoid of rational basis, appellants say, because it makes absolutely no sense that former single-purpose jourmeyman/woman should receive exactly the same seniority tratment as their fully qualified fellows. These single-purpose people were not even tranferred into the tool and die trade until 1993, at which point they began to learn the full range of skills it would be necessary for them to master in order to be fully qualified Tool and Die Makers. Logically, in appellants' view, these single-purpose people should have seniority commencing with their date of entry into the Tool and Die classification.

We disagree. What GM and the UAW did here was almost monumental in its scope. They revised an entire seniority system that had endured since World war II. The plan they agreed to rebuilt the system from its very foundations. It provides the means to create a more efficient and more fair tool room at the Saginaw facilities. Efficient, because its work force is now more highly trained. Efficient, also because that same work force is now more flexible, no longer hidebound by a myriad of jurisdictional fiefdoms. Fair, because opportunities available only to a relatively few elite are now made available to all. And fair, because all of the former single-purpose people are not made to stand at the end of the line when it comes to such matters as promotions, shift preferences, vacations and the other perks that come with seniority. These people have paid their dues, otherwise they would not qualify for January 7, 1985, seniority pursuant to the requirements of Appendix A, Section VI.A.4. We find the application of Appendix A, Section VI, to the Restructure Agreement to be entire rational, and wholly consistent with the ends it seeks to achieve.

Martin v Local 699, 9 PRB 374, 378-79 (1997).

Third, Wlodarczak quoted Martin and held:

[The above] sentiments are equally applicable to this appeal. When all is said and done, this appeal consists of nothing more than a claim that incumbent Inspectors are being somehow treated unfairly because Tool and Die Makers from the TD6J classification are being allowed to transfer to the Inspector classification, and to bring with them their January 7, 1985, seniority date.

The Wlodarczak appellants argued that appendix A applied only to persons laid off from closed or idled facilities, that tool inspection is a separate non-interchangeable trade, and that the former tool and die makers lacked the necessary skills. The PRB rejected all this, particularly noting that tool inspection is "related" to tool and die making because both are included as part of the metal working trades.

Wlodarczak v Local 699, 9 PRB 435, 440-41 (1997).

A year later the PRB reconsidered and reversed Rivett, with one member dissenting.

The majority opinion:

In the context of the history of UAW/GM skilled trades employees, the tool room may be likened to a generic family. Originally, it was populated by persons who were trained in the totality of the skills required to operate all of the tools and machines found in the GM tool room of the 1930's and early 1940's. However, this practice ceased and the tool room was broken up into specialized segments as a result of special circumstances deriving from World War II. No longer was there time to train fully the men and women who were hired during the War to build and operate the machinery required for the War effort. Most of these employees were trained to perform a single operation or related series of tasks. These specialized trades were classified overall as "Metal Working Trades." They included Diecast Diemaker, Die Moldmaker, Diemaker, Die Sinker, Metal Modelmaker, Metal Patternmaker, Tool and Diemaker, Toolmaker, Guagemaker, Tool Layout Inspector A.A., Metal Spinner, Templatemaker - Tool and Die, and Tool Machinist A.A. [footnote omitted]

Once in place, these specialized trades survived long after the end of World War II. Some employees worked their entire careers in but one of these specialized positions. The lines of demarcation between these various single purpose skilled trades eventually became virtually set in stone, and were jealously guarded. A Diemaker, however skilled, might not do the work of a Die Sinker. Inefficiencies resulted. As long as the industry was insular, these inefficiencies could be tolerated. However, with the advent of the globalization of the automobile industry the pressure for change began to mount.

Now, by reason of these considerations of competitiveness and the need for an ever better-trained and skilled workforce the original tool room is being reshaped and reconstituted as provided for in Document 112 of the parties' Agreement. The single purpose classifications are slowly being eliminated, their employees are being retrained and the lines of demarcation are becoming increasingly blurred and eliminated. Still, the original constituent metal working trades are considered by the Union and GM to be "related" in the sense that they were all originally part of the tool room.

Machine Repair, on the other hand, is considered by the Union and GM as a separate family, and was never a part of the tool room. Machine Repair skilled trades people may be closely related in terms of their training, but the trade was never a part of the original tool room generic family.

Ultimately, the decision of the Union and GM to treat these former tool room trades, and only the tool room trades as "related" is a matter of bargaining policy and is therefore not subject to the jurisdiction of the Public Review Board unless it can be shown that the policy derives from impermissible motivation such as fraud, collusion or discrimination or is otherwise devoid of rational basis. It is not devoid of rational basis because it has its roots in the historic tool room recognized by the parties from the inception of their bargaining relationship. While appellant Rivett does contend that because he acquired his journeyman status in the Machine Repair trade he is a victim of discrimination, that discrimination, which is not based upon impermissible factors such as race, gender, religion or disability, but rather on historic industrial antecedent, is not improper.

Rivett v Local 699, 9 PRB 391, 395 (1998).

The dissent:

To accommodate the Union's position we have invented a so-called generic family comprised of former tool room trades considered by the Union to be "related." This generic family is better described as a virtual family, constructed without regard to modern day realities such as the type of training received by the employees who make up the family, the language of the Collective Bargaining Agreement, and the contradictory statements in non-contractual documents supplied by the parties to the appeal.

Take first the issue of training. Following is the apprentice training schedule for the Die Making and Machine Repair classifications:

...

From the schedule, it is apparent that the training that these two groups of employees receive, while not identical, is quite similar. Contrast the training schedule of a "related" metal working trade:

...

As is readily apparent, although Metal Model Making is considered a related metal working trade, the apprentice training for this trade is far more unrelated to Tool and Die Making than is Machine Repair.

This brings us to the language of the Agreement itself. In our original decision in this matter, we noted Rivett's argument, repeated many times, that Paragraph (178a) of the National Agreement expressly states that Machine Repair is "related" for purposes of training to the Tool and Die trade. The International's response to this argument is that Paragraph (178) merely defines a journeyman/woman; that Rivett is relying on an irrelevant provision. A careful reading of Paragraph (178) in its entirety demonstrates the fallacy of this contention.

...

It is readily apparent from the quoted language that Rivett having completed an apprenticeship in Machine Repair is a journeyman within the meaning of Paragraph 178. It is also apparent that the trade Machine Repair is regarded by the parties as "related" to several other metal working trades including Tool and Die Making. What this means, according to the language of Paragraph (178a), is that the machine operations of the listed are considered by the parties as related to their respective classification. The reference to Paragraph (174), which address layoff procedures, means that in the event of a reduction in force Rivett may exercise his seniority in any other related classification for which by reason of his training he is qualified. Note, however, that Model Making - Metal is not listed as one of the "related" trades. This makes perfect sense, for the training of a Model Maker is very different from that of the trades listed in Paragraph (178a). [footnote omitted]

The Union places further reliance on a document it has supplied entitled "Companion/Related Trades".... This shows the crafts listed ... as Metal Working Trades all to be "related basic trades," this despite the very different training required for these various trades, the fact that most of them are no longer, if they ever were, apprenticeable trades and they are no longer mentioned anywhere in the parties National Agreement.

Also contained in the record are the job descriptions of various skilled trades some of which are apprenticeable and some of which are not. They are divided into three groups, maintenance trades, metal tades, and technicians. [footnote omitted] Although the Union has taken the position that Machine Repair is a maintenance trade, in this document it is listed as a metal trade.[footnote omitted]

... [T]he union has produced absolutely no convincing evidence to demonstrate that, despite the language of the Collective Bargaining Agreement to the contary, Machine Repair is not related to the Tool and Die Making trade. As a member of a related trade, Rivett, no less than all the former single-purpose tradespeople, is entitled to the same treatment that they received upon the occasion of their transfer into the Tool Inspection IF6J classification.

Rivett v Local 699, 9 PRB 391, 396-99 (1998).

The next decision was Wemyss v Local 594, which followed the Rivett reversal by two months. Wemyss noted that GM's market share had declined by nearly one half since Douglas Wemyss hired into the tool and die classification. It continued:

We agree on the surface it is "unfair" that Douglas Wemyss, who was first hired by General Motors in 1971 and has continued to work there ever since, should have only a 1991 seniority date in the wood model shop to show for it.... But life is sometimes unfair....

While we can readily understand the anger and frustration felt by Wemyss over his seniority situation, we hope we can demonstrate to him that although his circumstances may be "unfair," the fault for this lies not with his Employer or his Union, but rather with circumstances over which neither Wemyss nor they have complete control....

...

To cope with changing times, GM and the UAW have had repeatedly to amend provisions of their collective bargaining agreements to provide job security for employees in a Company that, in order to remain competitive, has been and continues to be rapidly downsizing. New technologies have also had considerable impact on both the kind and number of skilled trades personnel employed since the time of Wemyss's hire.

Among the solutions adopted by the parties for providing job opportunities for employees who become permanently laid off from their home plant are various appendices to the UAW/GM National Agreement including Appendix A [footnote omitted], which provides preferential hiring rights for such employees, and Appendix D-1. [footnote omitted] This latter provision provides for the seniority treament of permanently laid off seniority employees who acquire a position at another GM plant. It is this Appendix which establishes a January 7, 1985, date of entry for employees whose corporate seniority dates are January 7, 1985, or earlier. These appendices have been applied by the parties in related situations such as those involving transfers of operations, abolition or consolidation of classifications and the like. Their principles are embodied in the memorandum agreement between Local 594 and Local Management providing for the transfer of employees from the Tool Maker and Jig and Fixture classification to the Wood Model Maker classification.

Wemyss v Local 594, 10 PRB 119, 121-22 (1998).

Finally, two months after Wemyss, Daniel Maloney sought to distinguish the previous holdings on the ground that the Machine Builder/Machine Repair classification and Mold Maker trades were not "related." He argued:

the [union's] position on the relatedness of the tooling trades was a first step towards consolidation of all trades, and he submitted documents to show that the UAW has traditionally been opposed to skilled trades consolidation.

The PRB quoted from Wemyss at length, and then answered:

The determining factor is not the relatedness or non-relatedness of the trades in question, but rather that the decision to treat them or not to treat them, as related is essentially a matter of bargaining policy over which this Board has no jurisdiction. [footnote omitted] It is not the question of the relatedness of the various specialized trades that counts. Rather, it is the policy of the parties to eliminate and consolidate the former single-purpose trades in order to increase the efficiency of the work force while at the same time attempting to treat as fairly as possible all employees whose seniority rights are affected by the process.

Maloney v Local 1097, 10 PRB 301, 302, 305-09 (1999),

see also Reiter v Local 1097, 10 PRB 310, 313-14 (1999) (citing Maloney).

The constitution was amended in 2002 to give the IEB final authority in appeals concerning skilled trades lines of demarcation, and give the president final authority in appeals concerning a journeyperson card.

Other appeals regarding skilled trades follow.

Article 19 section 3 (separate contract ratification for skilled and other work groups),

article 19 section 3 (skilled trades department reviews contract demands affecting skilled members before they are submitted to the employer),

article 33 section 2(b) (appeals of local decisions as to skilled trades lines of demarcation go to the IEB and there is no further appeal),

article 33 section 2(b) (appeals of decisions of the skilled trades department pertaining to a journeyperson card go to the president and there is no further appeal);

Garrett, 1 PRB 596, 600-02 (1970) ("We are cognizant of the Union's very legitimate concern that the standards for the issuance of a journeyman's card be jealously maintained and we wholeheartedly endorse its view in this respect[,]" but appellant has satisfactorily explained discrepancies in his application),

Berry v Local 600, 4 PRB 53, 57 (1983) (numerically superior tool and die makers and machine repair members did not cause provisions to be negotiated into local agreement which discriminate against the numerically inferior tool machine operators, despite that the system may be an aberration in the Ford system),

Krueger v Local 1999, 6 PRB 320, 323 (1991) (decision whether to grant journeyperson status under a contract is a matter of union bargaining policy),

Salyers v Local 1681, 9 PRB 187, 188, 191 (1996) (agreement with management to violate contract by exceeding contractual journeyman/apprentice ratio does not state a charge under article 31),

Estes v UAW, 9 PRB 555, 564 (1998) ("[T]he journeyman certification process is not an adversarial procedure...."),

Berryman v Skilled Trades Department, 10 PRB 222, 227-31 (1998) (application for electrician journeyperson card properly denied because experience in WEMR classification is not "related" to experience as electrician),

Allen v Region 3, 10 PRB 238, 241 (1998) (whether an individaul is qualified for a journeyperson card is a matter of bargaining policy),

Wright v Local 659, 10 PRB 248, 254-55 (1999) (protested member had more seniority and was more qualified),

Rice v Local 719, 10 PRB 564, 567 (2000) ("[Members] may not use the grievance procedure to achieve that which they have been unable to accomplish at the bargaining table."),

Badour v Local 668, 11 PRB 219, 221 (2001) ("Badour is attempting to bootstrap his way into a skilled trades classification without first completing the training required to become a journeyman."),

Woods v Local 862, 11 PRB 332, 335 (201) (contract did not recognize automotive mechanic trade, so UAW's journeyperson card in the trade was worthless),

Garrish v GM Department, PRB Case 1480, p 12 (10/25/04) (appellants have burden to establish grounds to disturb local's decision to withdraw grievances challenging qualifications of new hiree journeymen, and there is no requirement that the local provide evidence supporting decision to other members),

Eardley v Local 1112, PRB Case 1535 (6/28/06), p 7 (relatedness of trades is matter of bargaining policy and therefore exempt from PRB review except on a showing of impermissible motivations or no rational basis);

McTaggart, CAC, session 11/93 (appellant cutter grinder EIT sought to transfer plants to get more overtime, remanded to determine whether opening appellant sought to fill involved a requisition for a journeyman).

Separate contract ratification by skilled trades members is discussed elsewhere.

Slander by company

Acker v Local 735, 4 PRB 249, 251 (1984),

Spencer v Local 140, 8 PRB 210, 214 (1993).

Sleeping on the job

James v Region 5, 3 PRB 385 (1982) (sleeping on the job appears to have been a non-dischargeable first-time offense, member had high seniority, likely racially discriminatory motivation on part of person who blew the whistle on the member, arbitration ordered, PRB jurisdiction retained),

Sarnella v Region 5, 11 PRB 288, 291-92 (2001) (union secured offer of $1000 and a voluntary quit but appellant declined).

Subcontracting

Hein appealing Baudoux v Region 1, 5 PRB 703, 710 (1989),

Siwek v GM Department, PRB Case 1595 (10/30/08), pp 7-8 (decision to withdraw group grievance protesting company's decision to have vendors do their own quality control was not irrational; vendor quality inspection was not historic bargaining unit work).

Subpoena

Pledger v UAW, 11 PRB 493, 496 (2002) (subpoena as sufficient excuse for missing work).

Technology, assignment of work

Hurd v Aerospace Department, 11 PRB 297, 301-02 (2001) (union became convinced that work was experimental until testing and evaluation would be complete, and therefore work was properly assigned to R & D employees, but it also got company to pay $10,000 each to certain tool builders),

Geniac v Local 12, PRB Case 1491 (1/14/05), p 5 ("It has always been the position of the UAW International Union that new technology may be inevitable. However, whoever performed the work manually in the past should continue to perform the work required by the new technology.").

Theft

George v Region 2A, 5 PRB 204, 209 (1987) (remanded),

Harris v Region 3, 11 PRB 537, 539-40 (2002),

Trimceski v DaimlerChrysler Department, PRB Case 1409 (10/30/02),

Folino v DaimlerChrysler Department, PRB Case 1415 (10/30/02),

Polansky v DaimlerChrysler Department, PRB Case 1552 (1/26/07), p 8 (time card fraud).

Timeliness of grievance-processing

Discussed elsewhere, this is a recurring issue, whether or not the union has missed a deadline.

Unauthorized strike or slowdown

Wright v Local 1069, 5 PRB 775, 793 n 18 (1990) (dissent) (PRB majority's rationale could be used to justify certain wildcat strikes),

Gardner v Local 653, 11 PRB 40, 43 (2000) (where appellant was accused of deliberately impeding production and seeming to boast of it, though his machine had malfunctioned and his disciplinary record was unblemished it was rational for the shop committee to compromise his discharge grievance by returning him to work without pay after five months),

Lescoe v Local 900, PRB Case 1487 (5/12/05), p 15 (appellant would have been unlikely to have encouraged an unauthorized walkout while campaigning in committeeperson election, none of the 11 member statements gathered by the company the day after the walkout implicated appellant, the one statement implicating appellant was given 20 days later by a member who was fired that day and who circumstances suggest may have been acting on behalf of supporters of opposing caucus or of local in retaliation for appellant's successful challenge of previous election, and local never interviewed the accuser).

Unemployment benefits

Weir v Region 1D, PRB Case 1580 (6/9/08), pp 21-24 (though company manipulated the union and arbitrator in articulating the standard it had used in deciding which of the 198 accused members and officers to discipline for widespread misconduct regarding unemployment benefits, union did save many of their jobs; as to the others, union's strategy had been explained to and approved by the membership, discovery is not available in the grievance procedure, a too-suspicious attitude toward the company could have undermined the collective bargaining relationship, and once the arbitrator rejected the grievance of one of the least guilty the union had to recognize the likelihbood that none of the others would be reinstated through the arbitration process).

Voluntary retirement

Carson v Region 2A, 6 PRB 186, 188 (1991).

Wages

Bania v Region 1A, 10 PRB 243, 246-47 (1998) (diminution of pay rate following re-placement after discontinuance of appellant's classification),

Carraro v Ford Department, PRB Case 1442 (12/22/03), pp 7-8 (management had discretion to pay employees at rate within a specified range).

Wasting time, leaving work area

Erd v Region 2B, 10 PRB 257, 260 (1998) (appellant does not deny violating company rule),

Ramsey v Region 8, 10 PRB 287, 291 (1999) (appellant does not deny she left the plant without management's permission),

Webb v UAW, 11 PRB 214, 217-18 (2001) (medical excuse for appellant, who was working under the terms of a conditional reinstatement, and left work station claiming medical exigency, covered period commencing two days after the incident),

Nash v GM Department, PRB Case 1583 (2/12/08), pp 14-15 (despite appellant being on LCA at time he left plant without permission, it appears that management did not actually intend to terminate him until his bizarre behavior at disciplinary interview),

Hulme v Northwest Local 163, PRB Case 1588 (6/10/08), pp 10-11 (though supervisor appeared to unfairly single out nearly-30-year appellant for discipline, he claimed to have twice seen appellant out of the plant for an hour each time and appellants' witnesses could not verify the time of day they saw him in the plant; committeeman succeeded in reducing the discipline, and to grant some of appellant's other grievances),

Pappas v Region 1A, PRB Case 1602 (10/28/08), p 6 (company rules state unequivocally that leaving the plant without permission and overstaying lunch are prohibited),

Hendley v Region 1, PRB Case 1628 (1/25/10), pp 3-4, 7, 10-12, 16-18 (where appellant had left the plant for 12 minutes without punching out, the company rule requiring punching out had been announced during a production meeting and posted in the plant though appellant didn't attend the meeting and didn't see the posting, the contract had no system of progressive discipline, the arbitrator can only enforce the contract as it is written, and the union obtained a $5000 settlement offer from company which appellant rejected, the union acted rationally in withdrawing the discharge grievance, despite IEB testimony of two fellow members who said they too continually left the plant for short periods without punching out and they continued to do so for three years after appellant was fired).

Working while on leave

Zepplin v Local 974, 6 PRB 477 (1993),

Simpson v Region 1, PRB Case 1623 (6/24/09), pp 15-17.

Local elections

The PRB's job is to enforce the union's election rules, not to assure that an election was conducted in the optimal way.

Englund v Local 699, 5 PRB 142, 144 (1986),

Lescoe v Local 900, PRB Case 1487 (5/12/05), p 16.

Elections are covered by articles 38 (LEB members), 45 (stewards and committeepersons) and 8 (convention delegates).

There are lots of IEB interpretations of these articles. I will not try to review them all because (1) they are so many and complex, (2) they are bound in the constitution and you can read them yourself, and (3) there don't seem to be many appeals about them.

Officers' duties once they are elected are discussed elsewhere.

The procedure for recalling stewards and committeepersons after being elected is treated elsewhere.

The UAW has published a Guide for Local Union Election Committees," also called the election guide.

It is based on the LMRDA and the constitution. For every suggestion in it, the guide takes care to note which of the two is a source. For instance a candidate's use of employer or union funds is prohibited by the LMRDA but not the constitution. On the other hand the procedures for appealing an unfair election under the constitution are spelled out, but not the procedures under the LMRDA. For many rights, both are listed as a source. A copy of the election provisions of the LMRDA is printed at the end, but not the election rules of the constitution. A third source, the EPC's guarantee of "free, fair, and honest elections," is not mentioned at all.

Election guide, chapter 8 "Union and employer funds" pp 27-30,

election guide, chapter 15 "Appeals and new elections", pp 74-75.

The introduction says:

The Guide is designed to an easy-to-use reference based on the law and regulations as well as our International Constitution.

This is misleading. The PRB has upheld elections which violated the guide because the PRB could find no violations of the constitution or bylaws.

Silva v Local 2244, 10 PRB 148, 151-52 (1998) ("[T]here will sometimes be situations which arise that are not addressed in the Guide or which require a process different from the one recommended in the Guide."),

Baxter v Local 659, 11 PRB 263, 266 (2001) (guide recommendations are not fiats),

Quesada v Local 2244, 11 PRB 386, 391-92 (2002) (election upheld though election committee violated provision of election guide which provides it is to "[s]elect a polling site(s) and schedule polling hours which will provide all members a reasonable opportunity to vote"),

Jones v Local 140, PRB Case 1620 (6/24/09) pp 13-14 (deviations from procedures in the election guide do not provide grounds for overturning local elections).

Few UAW elections are conducted under antiseptic conditions. Invariably some rules are broken, usually out of ignorance or overzealousness. Regardless of the motivation, if the violation could have affected the result the election will be rerun.

Leflore v Local 600, 3 PRB 381, 383-84 (1982) (few are conducted under antiseptic conditions),

Horton v Local 422, 5 PRB 480, 482 (1988) (laboratory conditions not required but democratic conditions are).

In one bizarre appeal the local had scheduled an interim election for a four-hour period on a Sunday at the hall, knowing this would result in light turnout. The PRB upheld it anyway. What was strange was the UAW and the local then asked the PRB to help figure out how to interest members in voting. The PRB answer: Talk to them about the issues; also, get the company to pay them while they vote:

Alas we have no magic formula. Low turnouts are not confined to union elections; they are the norm in civil elections as well. The phenomenon tends to change, however, when there is an issue or issues of intense interest to the electorate.

It has been demonstrated that voter interest can be stimulated by bringing the issues to the doorsteps of the electorate. Debates among the candidates are one device that has been shown to stimulate interest, and local unions might try to schedule special meetings devoted exclusively to this purpose. Another such device could be to afford the opportunity to nominees for office to have their views printed in local union newspapers in the weeks leading up to the election. Pictures of the candidates in the newspaper may also stimulate interest, for persons whose names are unknown to the electorate may well have a familiar face as someone seen working in the plant.

Finally, when all else fails, why not consider providing an economic inducement? For example, this could take the form of giving employees an hour or so off on election day in order to vote in their Union elections. While this would have to be negotiated with the employer, it is not inconceivable that the employer might accede. After all, it is in the Company's interest as well that the leaders of the local union with whom it must bargain truly speak for the majority of the employees who elected them.

Quesada v Local 2244, 11 PRB 386, 391-92 (2002).

Eligibility and nominations

Sometimes there are questions of candidate eligibility.

Retiree eligibility for bargaining positions is discussed elsewhere. Voter eligibility is discussed elsewhere.

Proceedings, 23rd constitutional convention (1972), pp 384-87 (debate on adding article 48 section 6 covering owed non-dues money and effect on good standing);

article 38 section 1 interpretations 1-3 (3/5/45, 8/5/46, 3/17/47),

article 45 section 4,

article 45 section 4 interpretation 1 (6/10/71);

Espinosa v Local 719, 5 PRB 327, 329 (1987) (candidate for member-at-large working outside affected plant),

Grose v Local 279, 5 PRB 530, 535 (1988) ("[a]s the title of the position would indicate, the time study steward must perform all of his responsibiliites in the plant[,]" and the contractual super seniority provisions do not apply to the position for recall purposes, so laid-off member was ineligible to run),

Wright v Local 1069, 5 PRB 775 (1990) (discharged member as president),

Shaffer v Local 1112, 6 PRB 517, 519 n 2 (1992) (national agreement "requires that the committeeperson must be working in the district in order to represent the employees in that district"),

Hawkins v Local 7, 10 PRB 533, 536-37 (2000) (retiree as candidate for president of Chrysler local),

Bryant v Local 2116, 10 PRB 588 (2001) (laid-off member as candidate for president),

Espinosa v Local 719, PRB Case 1511 (9/6/05), pp 6-7 (nine-year temporary employee as candidate for shop committeeperson),

Adams v Local 174, PRB Case 1536 (6/28/06), p 6 (even though election committee declared him elected by acclamation, member could not challenge layoff on the basis of steward's superseniority, since because he lacked a year of continuous good standing under the local's rule he was neither nominated nor elected).

In 2006 the president's staff explained the UAW discourages part-timers from running for shop chair, and most contracts in large bargaining units prohibit part-timers from holding that position. But the contract at issue did not state that, and appellant part-timer was held eligible.

Frederick-Brown v UAW, PRB Case 1519 (12/21/05, 4/20/06), pp 13-14.

In 2002 the IEB interpreted articles 38 and 45 to mean that retirees are ineligible to run for local position which carries responsibility for grieving or bargaining required by contract or the local bylaws. This is so even though retirees may serve as delegates at bargaining conventions. In 2006 it explained:

This is a good rule. Retired members are not as accountable to the current Union membership as active ones. They may be less accessible. They may also be more prone to represent the interests of other retired members instead of current members. All of these factors may diminish the ability of the Union to react to the changing nature of the work place. They may also expose the Union to legal liability....

Pearson v Local 140 PRB Case 1534 (2/15/06), pp 7-8 (quoted by PRB from IEB position in previous appeal);

see also article 6 section 19 interpretation 3 (6/1/02),

article 45 section 1 interpretation 2 (6/1/02),

article 6 section 19 interpretation 1 (1/21/60),

article 6 section 19 interpretation 2 (undated),

article 55 section 1(b) interpretation 1 (4/6/67);

Hawkins v Local 7, 10 PRB 533, 536-37 (2000) (retiree may not run for president of Chrysler local even if it is established that retirees have served as presidents of Chrysler locals in the past),

Bennett v Local 1853, PRB Case 1429 (4/22/03), pp 6-7 (retiree as president),

Yettaw v UAW, PRB Case 1482 (10/26/04), p 6 (challenge to 2002 IEB interpretation held untimely),

King v Local 600 PRB Case 1499 (9/19/05), pp 9-10 (retiree as financial secretary);

see also Burkus, CAC, session 11/94 (retirees may not serve as delegates to meeting of Allied-Signal (Bendix) council).

A rule disallowing a substantial number of members to vote or stand for office may render the election undemocratic.

Stephen v Local 92, 1 PRB 105 (1960);

compare Scott v Local 664, 2 PRB 679, 684-85 (1978).

Local bylaws may specify the time by which nominations must be accepted, but the rule must be applied uniformly.

Article 38 section 2;

Lawless v Local 854, 6 PRB 39, 44 (1990) (equal application of nomination acceptance cutoff rule).

To be eligible for election to executive office or as a delegate you must have been in continuous good standing for a year prior to the nominations. There are multiple sections of articles on the point of "continuous" good standing, as well as IEB interpretations, and I try to capture them here:

Continuous good standing means having dues paid during every calendar month in which they were due, even if the last day of the month is a Sunday. While you are in the military service of the United Nations dues are waived, and good standing continues. Members entitled to "out-of-work" credits or on check-off or on strike are exempted from dues payment, and their good standing continues. If your company transfers you with an operation to another local, good standing continues. If you are a UAW officer or rep and your local disbands you may transfer to another local in the same region, and your good standing continues. If you are laid off, transfer to another local, and return to the first local within a year, your good standing continues.

Article 6 section 3,

article 8 section 11,

article 16 sections 8-9, 13, 18-20, 26,

article 16 section 8 interpretation 1 (last day of month falling on Sunday does not extend time for dues payment to Monday) (5/1/44),

article 16 section 8 interpretation 3 (authorized strike will not make member delinquent) (1/12/46),

article 16 section 18 interpretation 3 (laid-off member not on check-off must report) (1/21/60),

article 17 sections 2-5, 7

article 17 section 2 interpretations 3-4 (possession of withdrawal card normally interrupts good standing) (1/21/60, 10/11/51),

article 17 section 4 interpretation 1 (good standing continues in transfer of operations if entire seniority transfers) (6/1/02),

article 17 section 7 (if delinquent member is transferred or works at another local member must pay back dues and reinstatement fee to establish continuous good standing) (6/1/02),

article 38 section 3,

article 38 section 3 interpretation 1 (continuous good standing requirement cannot be waived) (3/5/45),

article 38 section 3 interpretation 3 (lack of qualified members who accept nomination will not vary requirement of one year continuous good standing) (3/4/45),

article 38 section 3 interpretation 4 (trial verdict of guilty upheld by membership breaks continuous good standing) (2/2/51),

article 38 section 3 (arrearage in any part of one-year period more than the time allowed by the local member may seek only non-executive office such as steward) (3/5/45),

article 48 section 6 (collection of owed non-dues money such as overpaid strike benefits);

proceedings, 23rd constitutional convention (1972), pp 384-87 (debate on adding article 48 section 6);

proceedings, 26th constitutional convention, p 279 (1980) (debate on withdrawal cards and transfer to other workplace);

Karras v Local 653, PRB Case 1512 (11/22/05), p 12 (member's failure to pay dues for two months did not break his continuous good standing because he was acting on the advice of local president),

Karras v Local 653, PRB Case 1512 (11/22/05), pp 8, 13-14 (when discharged GM member, who was working elsewhere making less money and overpaying dues due to incorrect advice having been given him by local financial secretary to pay at the rate of his GM job, realized he was ahead, election committee had discretion to find that member could not cease paying dues until the overage was corrected and remain in continuous good standing without notifying the local he was paid ahead),

Grima v UAW, PRB Case 1621 (9/16/09), pp 14-17 (candidates, one of whom transferred from his home local to a different plant and local and the other of whom accepted a voluntary severance package from his employer, lack standing to protest an assertedly unfair election held when they were employed in the home local).

Late payment of dues will not render a member ineligible to run for office if the member reasonably thought he or she was current and made a timely good faith effort to ascertain his or her dues status and maintain good standing but was frustrated by the negligence of the local financial secretary.

Local 952, 1 PRB 647, 649-50 (1971).

Election standards

There are different standards for elections:

• Executive officers: article 38.
• LEB members-at-large: article 38 section 5.
• Stewards and committeepersons: article 45.
• Convention delegates: article 8.

Article 45 is less involved than article 38, but the two standards are just as exacting.

Waldo v Local 780, 1 PRB 592, 394-95 (1970) (PRB rejects president's argument that the democratic standards under article 45 are not as high as those under article 38, so are not as easily set aside);

but see Franks v Local 7777, PRB Case 1604 (11/25/08), pp 11, 15-16 (PRB declines to rerun election for non-executive position that occurred in different hours than were ordered by the membership, partially because the constitutional requirement that election dates be established by membership applies only to executive offices).

One difference between articles 38 and 45 is that if the members vote to rerun an officers' election, whether there is an appeal or not the rerun cannot happen until the UAW president reviews the matter and approves it. In a steward or committee election by contrast, if there is no appeal the rerun can proceed immediately. Another difference is that there is no requirement that the election committee conduct steward or committee elections. Another difference is that committeepersons can be elected by a plurality; plurality elections are only allowed under article 38 for LEB members-at-large. Another is that in steward and committee elections, complete ballot integrity is not required, and afterward ballots need not be preserved.

Article 38 section 12,

article 45 section 5;

Harry v Local 774, 1 PRB 576, 579 (1970) (local was not clearly wrong to order rerun of non-officer election),

Waldo v Local 780, 1 PRB 592, 595 (1970) (local's decision to rerun non-officer election should not be upset if there is evidence to support it),

Reid v Local 222, 2 PRB 459, 462 (1976) (committeeperson could serve on election committee for officer election),

Tanzella v Local 738, 3 PRB 67, 71, 72 n 3 (1981) (steward and committee elections commonly present eligibility issues substantially more complex than in election for executive office, PRB reserves judgment whether rule in officer elections about who serves in contested spot pending appeals should be applied to steward and committee elections),

Bynum v Local 235, 3 PRB 85, 88 (1980) (dissent) (election guide has separate section for steward and committee elections and it does not provide for complete ballot integrity),

Burns v Local 719, 4 PRB 33, 35 (1983) (more rigid controls apply to elections under article 38),

Langworthy v Local 652, 4 PRB 68, 69 (1983) (only requirement of article 45 is that elections be democratic),

Carriveau v Local 651, 4 PRB 289, 291 n 1 (1984) (more elaborate procedures for officer elections do not apply to steward and committee elections),

Parker appealing Smithey v Local 276, 5 PRB 601, 604 (1988) (committeeperson elections need only be basically democratic),

Baker v Local 1618, 6 PRB 271, 273 (1991) (stewards and committee need not be elected by majority vote),

Pochik appealing Kapera v Local 372, 10 PRB 52, 58 (1998) (when local membership directs a rerun the local must do it unless there is a timely appeal),

Rickert v Local 1695, 10 PRB 464, 473 (1999) (automatic stay of election rerun pending presidential review),

Austin v Local 594, 11 PRB 119, 122 (2001) (local bylaw may provide that shop committee conduct district committeeperson election).

Article 45 provides that stewards and committee are elected for three-year terms, except by affirmative membership action a local can ask the IEB to permit terms as short as two years.

Article 45 section 2;

compare proceedings, 26th constitutional convention, pp 206-08 (1980) (convention rejects amendment which would have required three-year terms for stewards and committee).

The members-at-large on the LEB are not executive officers, and may be elected by plurality or majority vote at the local's option.

Article 38 section 5;

Dimeo v Local 72, 1 PRB 459, 462-63 (1968),

Craig v Local 997, 2 PRB 152 (1974).

The procedures for delegate elections are in article 8. To be eligible to run the usual rule about continuous good standing applies, plus you must have been a member of the local for three months before the convention month. Locals may elect a limited number of alternate delegates, but unless a new election is held an alternate may only replace a regular delegate who is "unable to serve." Elected members of the International Retired Workers Advisory Council are automatic delegates.

Article 8 sections 8, 11, 13, 17, 21-24,

article 55 section 4(f);

proceedings, 26th constitutional convention, pp 188-89 (1980) (convention rejects amendment which would have limited the number of alternate delegates a local could send).

There is no restriction on retirees running for and serving as delegates, even though part of a delegate's function is to attend and vote at bargaining conventions, and even though retirees may not serve in local positions which carry responsibility for grieving or bargaining.

There are no PRB decisions about elections of convention delegates and alternates. These are judged by the convention credentials committee.

Conroy v UAW, 1 PRB 493, 494-96 (1968) (PRB has no jurisdiction over delegate elections);

compare Gally v UAW, 2 PRB 67, 69 (1973) (validity of selection of CAP council delegates determines validity of CAP council proceedings).

The Credentials Committee is appointed from the elected delegates by the IEB. It is to assemble at least 10 days before the convention, and examine all credentials and investigate the standing of the delegates and their locals. Protests of a delegate election must be filed with the credentials committee within seven days after the local delegate election and not less than 21 days before the convening of the convention, whichever is first, absent a waiver of the time limits by the credentials committee. Protests may be filed by a member of the involved local, or by anyone on the credentials committee. The credentials committee may also consider protests of elections of international officers and regional directors. The president may intervene in the appeal if the violation occurred in the pre-election procedures. If the credentials committee decides an election was improperly conducted and the elected delegates should not be seated, jointly with the president it may order a rerun. Any appeal of the credentials committee decision is to the convention iteself.

Article 8 section 17.

Delegate elections must be run by an elected local election committee. Elections must be by secret ballot. They must be at least 30 days before the convening of the convention. At least seven days must pass between nominations and the election. Members must be notified of the election at least 15 days beforehand. Polls must be open a sufficient number of hours to allow all members to vote. Voting must be at the polls.

Article 8 sections 21-24.

Interim elections

These have occasionally been the subject of appeals.

Zajaczkowski v Local 296, 5 PRB 282, 284 (1987) (officers),

Parker v Local 420, 10 PRB 328, 331-32 (1999) (election committee),

Gonzalez v Local 1097, 11 PRB 373, 376-77 (2002) (election committee),

Quesada v Local 2244, 11 PRB 386 (2002) (executive board member),

Powell v Local 670, PRB Case 1474 (4/28/04), p 5 (steward elected to fill vacancy created by termination of previous steward serves only for the remainder of the unexpired term),

Lyons v Local 2280, PRB Case 1576 (12/17/07), pp 7-8 (though crucial piece of evidence possibly supporting IEB decision surfaced only after the decision, and investigation by president's staff was at best perfunctory, appeal of local's failure to hold election to fill interim vacancy within 45 days is moot due to passage of time and holding of untimely election).

Election committee

Officer and delegate elections are held under the supervision of a democratically elected election committee. A committee member must resign to seek office. Election committees may not add qualifications fixed by the constitution for exeuctive local office.

Article 8 section 21,

article 38 sections 3, 10-12;

article 38 section 3 interpretation 10 (local may not add to the qualifications for LEB offices fixed by the constitution, and contrary local bylaws are invalid) (3/5/45),

article 38 section 10(e) interpretation 1 (committee members must resign to seek office) (8/11/60);

Reid v Local 222, 2 PRB 459, 461-62 (1976) (candidate for alternate committeeperson may serve on election committee in officer election),

Burns v Local 719, 4 PRB 33, 35 (1983) ("It was not error for the election committee to impress volunteers when, by reason of bad weather, some of its members were unable to make it to the meeting."),

Appeal of Conway, 4 PRB 36 (1983) (regardless of election committee's good faith, use of absentee ballots was not in accord with local's bylaws and IEB resolution),

Horton v Local 422, 5 PRB 480 (1988) (chaos at election committee election),

Parker v Local 420, 10 PRB 328, 331-32 (1999) (membership may fill vacancy in election committee on temporary basis at the next meeting after vacancy occurs),

Rogers v Local 235, 10 PRB 520, 522 (1999) (election committee member should have quit when she ran for LEB member-at-large),

Austin v Local 594, 11 PRB 119, 122 (2001) (local bylaw may provide that shop committee conduct strike vote),

Engle in the matter of Ellis v Local 600, 11 PRB 209, 212-13 (2001) (opening of ballot box by CPA firm outside the presence of the election committee and candidates' challengers, in election won by a single vote, was fundamental error, making it impossible to know who won the election),

Gonzales v Local 1097, 11 PRB 260, 262 (2001) (appeal to have local hold election to fill vacancy in election committee mooted by holding of a new election),

King v Local 600, PRB Case 1459 (6/22/04), p 13 (election committee may be elected by acclamation),

DeGray v MDA Local 571, PRB Case 1477 (6/23/04), p 7 (election committee applied absentee ballot procedure rigidly but in good faith, and election result will not be upset though otherwise eligible voters were disenfranchised to an extent possibly to have affected the outcome),

Karras v Local 653, PRB Case 1512 (11/22/05), pp 13-14 (election committee's ruling holding appellant ineligible was not compelled by the constitution and neither was it prohibited, and it's decision was a good-faith exercise of discretion),

Frederick-Brown v UAW, PRB Case 1519 (12/21/05, 4/20/06), p 13 (election committee's determination of eligibility will not be disturbed in absence of constitutional violation),

Baxter v Local 659, PRB Case 1617 (4/22/09), p 14 ("[Election committee chair] did not have authority to overturn a motion [setting the election date] duly adopted by the Joint Council."),

Jones v Local 140, PRB Case 1620 (6/24/09) pp 13-14 (election committee's failure to preserve envelopes containing challenged ballots, removal of ballots from sealed container without the knowledge or presence of the election committee, and temporary disappearance of over 300 ballots do not warrant setting aside the election; even though these lapses were improper they occurred after the balloting was over and there was no direct evidence that any challenged ballot was improperly counted or that any eligible voters were disqualified),

Kibby v Local 148, PRB Case 1624 (6/1/09), pp 8-9 ("It is the role of the Election Committee to supervise the election; it is not the role of the challengers to supervise the Election Committee."),

Local 276 v IEB, PRB Case 1631 (9/15/09), pp 17-19 ("Local Election Committees are without power to add to the qualifications fixed by the UAW Constitution for executive Local Union offices.").

Sometimes election committee members defer to local officers rather than exercising their own judgment. This should not be. The committee must consult and cooperate with the incumbent officers, but the actual conduct of the election is entirely its responsibility. The local president is not an ex officio member, and has nothing to say about committee decisions.

Article 38 section 10(c) interpretation 1 (committee must cooperate and consult with officers, but actual conduct of election is committee's responsibility) (1/31/74);

election guide, p 25 ("In most Local Unions the Financial Secretary is the officer who maintains the membership list, and so will be responsible for making the list available to candidates."),

election guide, p 81 (president not ex officio member);

Karras v Local 653, PRB Case 1512 (11/22/05), record pp 41-43, 47 (candidate's request for reconsideration of election committee's eligibility ruling rejected by local president),

Williams v UAW, PRB Case 1540 (8/2/06), p 17 ("President Kimmons' appointment of the additional Election Committee members to assist in the recount was also improper. Nothing in the Constitution or its official interpretations authorizes a Local Union President to place unelected members on an Election Committee."),

Carthon v Local 2297, PRB Case 1603 (12/16/08), p 14 (once election is underway only the election committee should be involved in determining voter eligibility; incumbent officers' and candidates' search in employer records looking for additional information about membership standing was improper);

but see Austin v Local 594, 11 PRB 102, 105-06 (2001) (under local bylaws president, even though he is a candidate, has discretion to determine whether to approve lost time for election committee).

Campaigning

Candidates are entitled to view the local's list of active members before an election.

Rickert v Local 1695, 10 PRB 464, 475 (1999).

Only rarely does campaign activity result in an election rerun.

Crook appealing Spain v Local 1112, 10 PRB 88, 92 (1998) ("Indeed, on only two prior occasions have we determined that conduct occurring during an election campaign was so egregious as to require overturning an election.").

In one of its earliest decisions the PRB formulated the oft-quoted rule that circulation of defamatory campaign propaganda is not grounds to set aside an election:

In a free society a candidate in an election not only exposes himself to the possibility of defeat but also to sharp attacks and allegations by his opponents and their sympathizers. Since the purpose of campaign material is to propagandize, exaggerated statements are frequently included. Voters recognize this practice and consequently expect campaign literature to contain accusations and innuendoes leveled with less accuracy than that employed in usual forms of communication....

Since the question of the truth or falsity of the campaign leaflet and the existence or absence of malice in its publication need not be resolved in disposing of this case, we do not do so. In this context, however, the panel should observe that if appellant believes that he has been defamed by the leaflet, he is afforded remedies within the union and in the civil courts for vindication.

Appeal of Petrove, 1 PRB 126, 127-28 (1960);

see also Hite v Local 663, 4 PRB 356, 359 (1985).

Similarly, distributing defamatory campaign literature is not unbecoming conduct under article 31. Members are skeptical because they expect exaggeration and even false claims in election propaganda.

Foreman v Local 699, 4 PRB 123, 125 (1984) (term "vilification" in EPC should be narrowly construed),

Dombeck v Local 1645, 5 PRB 493, 496-97 (1988) (vilification in campaign literature),

Armstrong v Local 952, 5 PRB 537, 540 (1988) (asssumedly inaccurate election leaflet linking Blue Slate candidates with misappropriation of union funds),

Moye v Local 110, 10 PRB 37, 39 (1997) (authoring or distributing false, defamatory, and racially divisive election campaign literature),

King v Local 600, PRB Case 1464 (4/27/04), p 11 (union political activity is not for the faint of heart),

Karniewicz v Local 1999, PRB Case 1505 (6/23/05), p 7 (sharp attacks on opponent in political campaign are not unbecoming).

Racial issues have sometimes been raised in campaigns.

Sanders v Ternstadt Unit, 1 PRB 294, 298 (1963) (ill-founded charges of racial discrimination),

Page v Local 961, 6 PRB 288 (1991) (ill-founded charges of racial discrimination),

Feldman v Local 900, 9 PRB 332 (1997), president's answer to appeal, record p 166 (citing appeals to racial prejudice as possible exception to rule that elections should not be set aside on the basis of campaign propaganda).

Union resources -- including official information and the newspaper -- may not be used to promote one candidate over another. In particular, the local newspaper may not print partisan articles unless it offers the same chance to all candidates.

Roberson v Local 974, 2 PRB 395, 399-400 (1976) (articles in union newspaper),

Spain v Local 1112, 2 PRB 649, 653-54 (1977) (information received by local president in an official capacity from UAW),

Hite v Local 663, 4 PRB 356, 359 (1985) (local union telephones),

Montague v Local 651, 9 PRB 401, 405 (1997) (local newspaper's policy was to accept submissions of any member; appellant submitted no article to newspaper which it refused to run so local cannot be faulted for running partisan articles for incumbents),

Warner v Local 599, 10 PRB 575, 579 (2000), reconsideration denied (6/14/00) (election guide prohibits use of articles in local newspaper to promote a candidacy),

Montague v Local 651, 9 PRB 401, 405 (1997) ("Of course, if the newspaper's editors accepted articles of this [frankly partisan] nature only from incumbents, this would constitute an improper expenditure of Union funds.").

One PRB decision contrasts such articles to articles which are merely political:

Appellant Kelsey complains that Keresi's article was "political" in nature. We agree that these remarks could be considered political. We suspect, however, that many of the other articles which appear monthly in the "Beacon" also could be characterized as political. The point we wish to make is that there is nothing inherently wrong in a local union newspaper publishing political articles. The UAW is, after all, a highly political institution; it should come as no surprise, therefore, that most articles appearing in local union newspapers which deal with issues of concern to local union members will be "political" in at least some respects.

Appeal of Kelsey, 4 PRB 46, 47 (1983).

One decision overturned an election because a forged letter was circulated at a retiree meeting, purportedly written by an incumbent candidate and other incumbents to a UAW official, requesting that the local be allowed to impose a special $15/month assessment on its members. The real authors of the letter were never identified.

In the Matter of Shoemaker, 4 PRB 367, 370-71 (1985).

Campaigning using company or union resources or time is a frequent UAW issue. Candidates are often committeepersons or maintenance employees who naturally have daily access to members that other candidates don't have. The IEB and PRB only rarely overturn an election on this basis.

Telakowicz v Local 425, 1 PRB 148, 150, 153 (1960) (in a runoff election decided by a 29-vote margin out of over 1800 ballots cast, one slate's exclusive, deplorable, and reprehensible use of local's equipment and supplies to publish campaign propaganda election did not deprive opponent of fair election because practice did not hamper opponent in publication of his own literature, number of leaflets produced by each side was approximately equal, and there is no evidence the practice materially affected the result),

Donovan v Local 2000, 2 PRB 813, 816-17 (1979) (campaigning on company time is virtually universal throughout the union, rules which are unenforceable should not be made),

Schriber v Local 699, 5 PRB 115, 117 (1987) (PRB has never overturned election because of campaigning on company time),

Brandt v UAW, 5 PRB 337, 345 (1988)(rule which requires an international rep challenging an incumbent regional director's reelection to take a 90-day leave of absence before the election, and accept reassignment to another region if he or she loses, may create unlevel playing field and give incumbent an advantage but is not per se unfair),

Doyen v Local 6000, 5 PRB 472, 477 (1988) (campaigning on company time cannot be policed),

Feldman v Local 900, 9 PRB 332 (1997) (company threats to influence election require new election),

Crook appealing Spain v Local 1112, 10 PRB 88, 92-93 (1998) (solicitation at new-employee orientation meeting with management present require new election),

Donovan v Local 2000, PRB Case 1448, 1449 (11/20/03), p 9 (claim of campaigning on company time, even if true, will not provide basis for overturning an election),

King v Local 600, PRB Case 1459 (6/22/04), p 14 (enjoyment of campaign advantage intrinsic to office of incumbent is not unfair),

Alejandro v Local 2244, PRB Case 1553 (2/20/07), p 13 ("We frequently encounter claims of violations which do not warrant the cost and disruption of rerunning an election, even where the violation has been firmly established. Claims based on the use of company equipment by candidates fall into this category.")

Baxter v Local 659, PRB Case 1617 (4/22/09), p 13 ("Incumbent officers naturally have more opportunities to get their message to the membership than opposition candidates, but we have consistently ruled that such advantages are not cause for overturning an election [footnote omitted].");

compare Karniewicz v Local 1999, PRB Case 1505 (6/23/05), p 7 (fact that charged members may have acted on company or union time when distributing leaflet charged to be unbecoming is irrelevant to issue whether distribution was chargeable).