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Arbitrator Rejects Retaliation Claim Against KM&M Client

December 15, 2006

KM&M’s client, an association of lithographic printing companies, was the object of a bitter two-week strike in the fall of 2005.  Following the settlement of the strike, one of the association member companies reinstated most, but not all, of its striking employees.  One of the employees who was not reinstated had served as a strike captain on the union’s picket line during the strike.  The union filed a grievance, alleging that the company’s failure to recall the employee constituted retaliation by reason of his strike activity.  The company countered that it declined to reinstate the employee because he had consistently refused to work overtime in the past and because the company anticipated that it could save money by replacing the employee in question, when needed, with a lower ranking employee.  When the matter could not be resolved, it proceeded to arbitration.

The union advanced several reasons to support its contention that the company’s justifications for refusing to reinstate the grievant were all a pretext for strike-related retaliation.  For example, the union cited various communications the company had sent to the employees during the strike, expressing its distress over the union’s actions -- communications which the union termed “vitriolic.”  The union also adduced evidence of allegedly threatening comments made by a supervisor to the grievant while he was on the picket line.  Further, the union argued that the company’s reliance on the grievant’s refusals to work overtime was trumped up because the grievant had never been disciplined for his refusals in the past.  Finally, the union attempted to show that the company’s upgrading of a lower ranking employee to fill the grievant’s position actually generated little, if any, cost savings.

Notwithstanding this evidence, the arbitrator ruled in the company’s favor.  He found that the company had declined to reinstate the grievant as the result of a good faith judgment as to the company’s business needs, and not based on the grievant’s strike conduct.  Accordingly, he concluded that the union had failed to sustain its burden of proof of retaliation and he denied the grievance.