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Adventures in Labor Contract Language

By now most labor union officials in the country have heard about and are rejoicing over the “grammatical” U.S. Appellate Court ruling that favored dairy drivers in Maine.

Given how rare it is for unions to win anything these days—whether in federal court, at the bargaining table, or in the court of public opinion—this ruling, minor as it was, counted as a significant victory. We’ll take it.

Essentially, what happened was this: Maine dairy drivers argued that because there was no “Oxford comma” used to clearly delineate the intent of the overtime language, their union contract entitled them to premium pay.

The company strenuously insisted that comma or no comma, it was never their intention to pay overtime for this task. After carefully reading the language in question, and hearing arguments from both sides, the court sided with the workers.

The Oxford comma is what grammarians call the comma that is used before “and” and “or.” Consider this sentence: “The five women who attended the seminar were Linda, Joyce, Meagan, Elizabeth, and Pam.” That last comma is referred to as the “Oxford comma.”

Over the years, the Oxford comma has fallen out of favor, as casual users and various professionals came to regard it as redundant and unnecessary. But logicians and strict grammarians have never waivered. They realized that without this comma, we open ourselves to all sorts of misinterpretation.

Consider the sentence: “My favorite vegetables are potatoes, peas, carrots, onions, corn, and lima beans.” Now consider it without the Oxford comma: “My favorite vegetables are potatoes, peas, carrots, onions, corn and lima beans.” We have inadvertently created a sub-set. One of my English professors liked to say, we’ve turned the last two vegetables into “succotash.”

As a former negotiator for a labor union, I was constantly amazed at how misinterpreted our contract language could be, even after both parties—union and management—had spent, literally, hours hammering out, editing, re-editing, and refining a particular clause. Granted, some of this later “misinterpretation” was intentional and self-serving, but much of it wasn’t.

For instance, the terms “qualified” and “unqualified,” which were used throughout the contract, gave the union and management considerable heartburn. The Local was eventually able to win a grievance at arbitration by providing the arbitrator with bargaining notes that clearly indicated the intent of the language.

Unlike legal statutes, where the letter of the law tends to count for everything, workplace disputes that reach arbitration rely heavily on the “intent” of the language, even when the language itself is clumsy. So if either side can produce authentic bargaining notes that speak to intent, it’s a huge advantage.

Not that there were any hard, fixed rules in regard to writing contract language, because there weren’t. While some locals insisted that their officers pore over proposed language changes the way medieval Jesuits pored over scripture, there were other unions that didn’t seem to worry about it. Just say what you want to say, and if we agree with it, we’ll initial our approval.

Training was a concern, because being “trained up” meant a higher rate of pay. Accordingly, there were several local union contracts that included paragraph after tedious paragraph of explanation for what constituted a successful training period, and layers of explanation covering who was “qualified” for a particular job, and who wasn’t.

But there was a local in the same International that not only didn’t fuss over the finer points of training, they didn’t even use standard contract language. They used the term “broken in.” Where other contracts had phrases like, “upon the successful completion of formal training,” this one said, “Once the employee is broken in….” We couldn’t believe how amateurish it was.

This same local also used the term “usually” throughout its contract, a word so imprecise, you rarely saw it in a contract. Sadly, things didn’t end well. Once the company was sold, the new management team reinterpreted every ambiguous clause to suit them. It didn’t take the greedy bastards more than a few weeks to get broken in.

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David Macaray is a playwright and author. His newest book is How To Win Friends and Avoid Sacred Cows.  He can be reached at dmacaray@gmail.com

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