Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—Grievance involving improper leapfrogging of senior employees when assigning position to junior employee sustained, (May 21, 2025)

By WK Editorial Staff

Because there have been only one or two occasions that the employer canvassed Maintenance Mechanics by seniority regarding a vacant position since the union became the bargaining agent, it cannot be said that a binding past practice has arisen.

An employer improperly leapfrogged more senior employees by failing to offer a reactor rebuild position to the most senior qualified Maintenance Mechanic after the original selectee declined the job. In sustaining the grievance, the arbitrator ruled in favor of the union’s grievance that the employer violated Article 11 of the parties’ collective bargaining agreement. The arbitrator rejected the employer’s argument that the position was merely a temporary assignment not subject to seniority bidding, finding that shop-based roles like reactor rebuild, weld shop, and pump rebuild typically exceeded six months and therefor qualified as permanent vacancies under the contract. The employer was required to repost the vacancy and award it per the seniority process in Article 11 (INEOS Pigments USA Inc. and International Brotherhood of Teamsters Union Local No. 477, jointly with United Food and Commercial Workers Local 1033C (Franckiewicz, Arb. Feb. 21, 2015)).

Maintenance mechanics. The employer operates a large manufacturing complex that produces titanium dioxide and titanium tetrachloride. The employees involved in the grievance are Maintenance Mechanics. There are about 24 Maintenance Mechanics out of a bargaining unit of roughly 110 employees.

The plant processes titanium tetrachloride into titanium dioxide, typically in the form of a white powder used in food, cosmetics, paper, plastics, and paint. Maintenance Mechanics perform a wide variety of functions throughout the plant, specifically reactor rebuild, pump rebuild, weld shop, and oiler.

Maintenance Mechanics perform their tasks in accord with work orders. An individual work order may be of short duration taking an employee less than a day to complete or may involve a single job that lasts for months. Typical work orders are not posted or awarded by seniority.

Reactor rebuild job. In March 2024, the employer canvassed the employees in order of seniority for their interest in the reactor rebuild job. An employee, who was about seventh in seniority, accepted after all the Maintenance Mechanics senior to him declined. Shortly thereafter, apparently because of medical issues, the employee declined the job. The employer then offered the reactor rebuild job to another employee without first offering it to more senior employees.

Vacancies, bidding. Pursuant to Article 11 of the parties’ CBA, permanent vacancies within the plant shall be posted for a minimum of 10 calendar days. A “qualified bidder” is an employee who has the minimum requirements for the vacant position as listed on the job posting. Within seven calendar days after the close of the posting period, the company is required to post a notice of the awarding of the bid which includes the name of the employee.

Past practices. During negotiations, the employer proposed a “Fully Bargained Provisions” or zipper clause, and the union counter proposed adding “past practices” language. Ultimately, both parties withdrew their proposals. Still, the union’s chief negotiator recalled that as part of the resolution to withdraw the proposed provision, the employer said it would allow the union to argue past practice with no agreement. During the term of the current CBA, the employer has posted two job vacancy openings.

Disputed issue. The issue as framed by the arbitrator was whether the employer violated the CBA or binding practice by failing to award a reactor rebuild vacancy by seniority.

The arbitrator first addressed the question of practice. The record indicated that there have been one or two instances during the term of the current CBA in which the employer consulted Maintenance Mechanics in seniority order to offer them shop jobs. On this occasion, the employer did not follow seniority before offering the employee selected a shop job in reactor rebuild.

Although two occasions could be said to constitute precedent, two examples did not suffice to create a practice. The essential elements of a binding practice include consistency, repetition, and duration.

The essence of a practice is mutual acceptance of the practice as the proper response to a recurring situation. Only practices that arose after the union became the bargaining agent generate any obligation. Because there have been only one or two occasions since then, it cannot be said that a practice has arisen. Thus, the arbitrator concluded that the resolution of this case must come from the language of the CBA, unaided by any consultation of a practice.

Assignments versus vacancies. Where is the dividing line between assignments which management has the sole right to determine and vacancies which are subject to bidding and selection by seniority? Article 11 itself provides the answer. The final Section of Article 11 identifies temporary vacancies as vacancies lasting no longer than six months. Thus, a position in which the employee is expected to perform the same set of duties for a period of more than six months amounts to a vacancy within the meaning of Article 11. The evidence indicated that employees filling the roles of oiler, reactor rebuild, pump rebuild, and weld shop normally do so for longer than six months. Accordingly, the arbitrator concluded that openings in these positions constitute permanent vacancies within the meaning of Article 11 and are to be filled through the seniority and bidding process set forth in Article 11.

Therefore, the arbitrator concluded that the employer violated Article 11 by leapfrogging more senior employees to award the reactor rebuild position to a less senior employee who later declined the position. To remedy this violation, the arbitrator directed the employer to post the reactor rebuild position. If a qualified more senior employee desires to fill the position, the senior employee shall be placed in the position.

Award. The grievance was sustained. The employer required to post the reactor rebuild position, and a qualified employee more senior to the selected employee may claim the position, and shall be made whole for economic losses suffered, if any, because of the employer’s failure to award the opening in keeping with Article 11.

Attorneys: Paul Jackson for INEOS Pigments USA Inc. John R. Doll for International Brotherhood of Teamsters Union Local No. 477.

Companies: INEOS Pigments USA Inc.; International Brotherhood of Teamsters Union Local No. 477

Cases: Labor Arbitration UnionsMembers ContractClaims