Originally from Dispute Resolution Journal

An arbitrator once said that for a labor union, there are few, if any, more sensitive issues than bargained-for work—job preservation is at the very core of the collective bargaining process.1 Of course, unions are jealous of their jurisdictional boundaries, both when there is real or perceived threat from another labor union or possible assumption of bargaining unit work by supervisory personnel. Regarding this latter possibility, some unions may attempt to protect against erosion of members’ jobs by negotiating into the collective agreement a clause dealing with the circumstances under which a supervisor may perform bargaining unit work. Such clauses normally restrict supervisors to do such work for training or instruction purposes; when there is experimental work; or in “emergencies.” When no language in the agreement exists pertaining to supervisory restrictions on performing bargaining unit work, the recognition clause, the management rights clause, and/or the parties’ past practices regarding this issue tend to become significant considerations. If a grievance is filed protesting the alleged performance of bargaining unit work by supervisors, arbitrators must determine if the work involved was actually bargaining unit work; and if it is found that the work in question belongs to certified employees, the circumstances under which it was performed; whether there was contract language covering the situation or not; the parties’ prior practices, if any; as well as other possible equitable issues.

It has been 35 years since Philip Harris published an article dealing with the subject matter in question.2 An update of this important subject, utilizing recent arbitration cases, seemed to be appropriate. All reported arbitration cases involving supervisory performance of bargaining unit work from the Bureau of National Affairs [BNA] Labor Arbitration Reports, covering volumes 87 [1986] to 110 [1997], and the Commerce Clearing House’s [CCH] Labor Arbitration Awards, volumes 88-1 [1988] to 98-2 [1998], were included. A few older cases were used for contrast and perspective. In total, 51 cases were utilized in this study.