Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 93approach hiatus grievances on an "'ad hoc, case-by-case' basis,distinguishing those that are arbitrable under Nolde from thosethat are not.'The majority found that the employer's "course of conduct. . . demonstrates . . . [an] unlawful across-the-board refusal toarbitrate hiatus grievances.' The majority noted that "[i]n its refusalsto arbitrate, the [employer] adopted and maintained the positionthat both grievances were nonarbitrable, grounding its refusalon their having arisen out of events occurring after contractexpiration."The majority continued to cite Indiana & Michigan stating:"[A] dispute based on postexpiration events 'arises under' thecontract. . . only if it concerns contract rights capable of accruingor vesting to some degree during the life of the contract andripening or remaining enforceable after the contract expires."The majority concluded "that the rights involved in the holidaypay grievance do not arise under the expired contract." The majoritynoted that the events giving rise to the grievance occurredafter contract expiration, and that the contract language indicatedthe right to holiday pay did not accrue or vest 'during thelife of the contract," and did not indicate "the right to holidaypay was intended. . . to ripen or remain enforceable after [contractexpiration]."The majority concluded, however, that the rights involved inthe recall grievance did arise under the expired contract. Theynoted that under the contract seniority is accrued during the lifeof the contract and that the contract's failure to specify that contractexpiration could result in loss of seniority rights indicatedthe parties' intent that they remained enforceable thereafter.Member Johansen indicated he would fmd that both grievances"were 'arguably' over provisions of the expired contractand thus 'arose under' the contract."In dissent, Member Cracraft stated that the test of Indiana &Michigan is "whether the employer's conduct amounts to awholesale repudiation of the collective-bargaining agreement."Member Cracraft noted that during the contractual hiatus in thiscase the parties resolved a number of grievances and the employer"appears to have approached grievances on a case-by-casebasis. Further, the employer gave reasons "based on the languageof the contract for its position that the [two] grievances[not resolved] were not arbitrable under the expired contract."Member Cracraft concluded the employer's "conduct falls farshort of a wholesale repudiation of its contractual commitment toarbitrate hiatus grievances that arise under the contract."6. Continuity of Bargaining AgentThe Board continues to apply its traditional continuity of bargainingrepresentative analysis prior to granting a union's petitionto amend its certification based on an affiliation. This analysis