Bargaining Process Timeline TCE based on final pre-impasse proposal New Contract Impasse New Contract or Parties Agree to Extend Contract or Old Contract New Contract Period Statutory TCE TC Old Contract Terminates Impasse TCE based on final pre-impasse proposal Impasse and self-help

Litton Financial Printing Court balancing three conflicting doctrines In the absence of an agreement to extend contract past the expiration date, Katz “no changes” doctrine makes post-expiration TCE’s a matter of law, not contract grievance and arbitration a TCE Nolde Bros. (Supreme Court) case that says that obligation to arbitrate cases arising under the contract survives expiration of the agreement Arbitration a consensual process consent ceases when CBA expires

Litton Financial Printing (cont.) “Arising under the contract” means a right that accrued under the contract vacation pay severance pay Court decides whether the dispute is over a right accrued under the contract Court carving out an exception to Katz “no changes” doctrine: union security clauses – Sec. 8(a)(3) no strike clause - Sec. 13 duty to arbitrate based on terms of agreement

Litton Fin. Printing (cont.) TCE that exist unchanged after expiration per Katz exist by law, not contract enforced by legal, not contractual means Post-contract expiration grievance under the CBA exists only where: grievance involves facts or occurrences that arose before expiration; where a post-expiration action by er affects rights accrued or vested under the agreement; or disputed contractual right survives expiration of the agreement After expiration of the agreement, obligation to arbitrate a function of the nature of the dispute rather than the scope of the grievance and arbitration clause

Litton Financial Printing (cont.) In general, unilateral change cases must go to Board as UFLP cases, not to arb Court avoids question of whether seniority accrues and vests over time focuses on aptitude and ability language in contract Dissent: seniority should vest and should accrue worked for over time