Twin Cities Human Resources Associationc.ymcdn.com/sites/ Cities Human Resources Association SHRM Certification Preparation Course – Spring 2014 Employee and Labor Relations Session

Twin Cities Human Resources Association SHRM Certification Preparation Course – Spring 2014

Employee and Labor Relations Session 2

K. David Hirschey, MAIR, SPHR, GPHR Minneapolis, MN

2014 K. David Hirschey, Minneapolis, MN 2

Topics for Session 2

20% PHR (35 questions) 14% SPHR (25 questions)

• Motivations for Employees to Join or Not Join Unions • Union Organizing Campaign Activities • Union Representation of Employees • Employer’s Unfair Labor Practices (ULPs) • Union’s Unfair Labor Practices (ULPs) • Negotiations • Public Sector Labor and Employee Relations


Motivations for Employees to Join or Not Join Unions

♦ Employees join unions if they think they need to collectively protect themselves against arbitrary and / or unreasonable acts of management.

♦ Common conditions and practices that may result in employees joining unions

include:

1. Absences of management concern about employee problems and issues.

2. Communication between management and employees.

3. Working conditions.

4. Pay and Benefits.

♦ Key reasons employees tend NOT to join Unions include:

1. Employees identify with company and management.

2. Employees are satisfied with status quo.

3. Employees disagree with Union’s goals.

4. Employees see themselves as “professionals” or otherwise not suited for Union membership.


Union Organizing Campaign Activities Initial Contact ♦ Can be made in several ways:

1. Employee or group of employees contacts Union. 2. Union organizer contacts employees. 3. Management contacts Union and suggests it begin organizing efforts.

♦ Factors a Union is likely to evaluate in making decision to give assistance: 1. Number of potential dues payers. 2. Estimated cost of organizing drive. 3. Estimated chance of success. 4. Estimated cost of servicing bargaining unit. 5. Strategic importance of proposed unit to Union. 6. Other demands on Union.

Timing ♦ Union efforts should peak at time of election. ♦ If Union’s timing is off, it will either cost the Union votes or increase the cost of a campaign. Inside Organizing ♦ Most effectively done inside workplace by employees. The protected right of “Salting”. ♦ Employer may adopt no-solicitation rules and other devices to restrict access to non-union

employees. ♦ Management’s efforts to remain non-union must take place early. Leafleting ♦ Indicates the Union already has considerable employee support and inside Union organizers. Meetings ♦ Social affairs designed to transmit information and impressions to uncommitted workers and to

reinforce loyalty and dedication of those who support Union. ♦ Management may / should decline to provide time for meetings.


Home Visits ♦ Used infrequently because of time and cost. ♦ Management should not give Union access to employees’ addresses. Electronic Organizing ♦ Telephoning is less effective than home visits but more economical. ♦ The utilization of Internet campaigning is increasing rapidly. Media Campaign ♦ Public opinion is important factor in success of campaign—employer may suffer loss of

business and community goodwill. ♦ Organization’s response to media should be determined early and deliberately, with advice from

public relations staff and legal counsel. Indirect Pressure ♦ The best “defense” is to have firmly established and widely communicated policy in favor of

remaining non-union. Picketing ♦ Three forms: Recognitional, Organizational, and Informational. ♦ Organization must know restrictions on both types of picketing and be able to recognize Unfair

Labor Practices (ULPs). Campaigning at Polls ♦ Campaigning by either party in or around polls during election hours is prohibited. Outcomes of Voting ♦ Ballots generally counted immediately after voting. ♦ Union certified by simple majority. ♦ Tie vote results in no certification. ♦ If the union does not get a majority vote, another election may not be held in same unit for one

year.


Addressing a Union Organizing Attempt An organization generally goes through three phases in a Union-organizing attempt: Phase I - Preventative and Assessment

• Organization conducts audit to evaluate susceptibility. • Union conducts research to determine what the concerns or issues might be.

During this phase, the Union may bring in organizers to contact employees at home to show

video movies on belonging to a Union. Phase II - Card Signing The Union will generally establish a committee of employees, along with some outside

organizers, to get employees to sign Union authorization cards. The management can and should point out the consequences of signing a Union card.

Also share concerns about the motive of the Union. Ascertain if your employees are in the card-signing mode. Establish an action plan of what to do if you find employees are signing cards. Phase III - Pre-election The Union has convinced employees to sign authorization cards and subsequently has

notified the National Labor Relations Board (NLRB) for recognition and/or certification. The Union must have obtained 30% of the target population to sign authorization cards to request election. If they get 50% plus 1 to sign authorization cards, they may request the organization to recognize the Union without an election.

You do not have to be an attorney to understand what you should do or not do during an organizing campaign. The basic ground rules are, with respect to any employee or Union representative:

1. Do not Threaten 2. Do not Interrogate 3. Do not Promise 4. Do not Spy

With these points in mind, there are two distinct processes to addressing a Union Organizing Attempt in each of the three phases noted above: Education and Evaluation. The following briefly deals with some of the aspects an organization needs to be sensitive with in dealing with a Union-organizing attempt.


Preventative and Assessment Phase: Before an Organizing Drive A. A Union representative may contact supervisors or any member of management at any time.

This contact may come by telephone, mail, or in person. This representative is trying to: 1. Claim that the union represents a majority, or all, of the employees in a particular area

of/or the organization as a whole, and/or 2. Demand that you recognize the Union as the exclusive bargaining agent for the

employees at the organization, and/or 3. Request that you meet with Union representatives to set a date for negotiating a labor

contract dealing with salaries, hours, and working conditions for the employees. B. If this happens, some points to remember are: 1. Maintain composure. Be polite but be businesslike and firm. 2. State that you are unable to discuss this issue with him/her. 3. Get the person’s name and title, the name of the Union, the local number, address and

telephone number, if possible. 4. Do not accept any cards or statements presented by the Union representative. 5. Do not make any statements that could be construed as recognition of the Union. 6. Listen to what the representative has to say, but avoid any lengthy discussion. 7. Immediately contact a management representative in your Human Resources or Legal

Departments. The Union’s purpose is to get a person in the organization's management to say or do something

that will give the Union a basis for automatic recognition of it as a bargaining agent for the employees, or that can become the basis for an unfair labor practices charge.

C. Union organizers are allowed to distribute literature off organization property as long as they are

not blocking the inflow or outflow of traffic. D. Employees are allowed to distribute literature during their non-work time such as breaks and

lunch, as long as they are not interfering with another employee doing his/her job.


Card Signing Phase After the initial information gathering phase of an organization attempt, the Union may begin its authorization card signing campaign. There are serious implications associated with signing an authorization card of which employees are usually not aware. 1. Employees have the legal right to not sign a Union authorization card. It is a violation of

the law for a Union agent to threaten, coerce, or intimidate an employee into signing a Union authorization card.

2. Union authorization cards are the first step toward having a Union, which includes dues,

assessments, potential strikes, etc. 3. A Union card normally is not kept confidential or secret as stated by the Union

representative. They are frequently shown to NLRB officials to support a representation election.

4. The Union cannot guarantee any improvements in salary or benefits if employees sign

authorization cards. 5. Union authorization cards are legally binding instruments and, in some cases, have been

used by unions to obtain bargaining rights for employees where those employees were never given a chance to vote on whether or not they wanted a union.

Pre-Election Phase: During the Organizing Campaign Once an organizing drive is under way, it becomes very important that managers and supervisors conduct themselves in such a way that the Union has no basis to file unfair labor practices charges. Should the Union prevail in such a charge, the outcome could be the certification of the Union as the bargaining representative for employees without the employees being given a choice. A. Some things you can do during the organizing campaign: 1. Tell employees that you have been and are willing to discuss with them any subject of

interest to them. 2. If necessary, tell employees you do not know the answer to a question but will get back

to them. 3. Tell employees about the benefits they presently have, so long as you make no promises

or threats about increases or decreases in those benefits. 4. If appropriate, tell employees how their salaries and benefits compare favorably with

other companies in the area. 5. Tell employees some of the disadvantages of belonging to a Union, dues, initiation fees,

assessments, and fines. 6. Stress the advantage of fair and direct dealing between the employee and supervision

without third party intervention. 7. Point out that, once the employee becomes a Union member, the local Union’s bylaws

and the international Union’s constitution legally bind them.


8. Point out that, in negotiations, the Union cannot guarantee any specific level of salaries

and benefits. The employer’s obligation is to negotiate in good faith, but the employer still makes the determination as to what is given.

9. Tell employees about NLRB election procedures and the importance that everyone

exercises his/her right to vote on a secret ballot. 10. Enforce Organization rules impartially. You can continue to lay-off, discipline, and

discharge employees for cause as long as you follow customary practice, and it is done without regard to Union support or nonsupport.

B. Some things organizational representatives cannot do: 1. Promise employees a pay increase, promotion, improved benefits, or special favors for

voting against the Union. 2. Threaten an employee with loss of a job, reduction in income or benefits, discontinuation

of privileges, or use intimidating language that may influence an employee not to join the union.

3. Discharge, discipline, layoff, or otherwise discriminate against an employee for acting

on the behalf of the Union. 4. Spy on Union meetings or give the impression that you have employees under

surveillance. (If a group of people is standing around the facility talking, you may join it but do not instigate a discussion about the Union.)

5. Give the appearance that you are trying to determine how an individual feels about the

Union. 6. Engage in activities that favor employees who are not supporting the Union. 7. Speak to an employee or small group of employees in your office or the office of some

other manager about the Union campaign and urge the individual(s) to vote against the Union.

8. Ask employees to express thoughts about a Union, ask employees how they intend to

vote, ask employees if they have signed an authorization card, ask members about internal affairs of the Union or ask for identity of the instigators or leaders of employees favoring the Union.

In general, you cannot threaten, discipline, or promise the giving or taking away of any income, benefits, or privileges because of Union activity.


Union Representation of Employees Demand or Voluntary ♦ Unions may submit demand for recognition to employer, or employer may voluntarily recognize

Union. ♦ Most recognition is result of NLRB-supervised secret ballot. Exclusive Recognition ♦ Management can recognize only one Union per bargaining unit. ♦ Union must have support of majority of employees in unit. ♦ Management:

◊ Has statutory duty to bargain with a certified Union. ◊ May not negotiate with another organization on behalf of employees.

Employee Interest ♦ Authorization Cards are commonly used by Union to seek status of employee interest. ♦ At least 30% of employees in prospective unit must sign authorization cards before NLRB will

order election. ♦ In special instances, NLRB can waive election and use cards for determining employees’

representation preference. Concluding the Organizing Process 1. Employer volunteer’s recognition. 2. Union convinces employer to grant recognition. 3. Union convinces employer to witness its majority status. 4. Union wins recognition through a bargaining order. 5. Union gains recognition through a NLRB-conducted election.


Petitioning for an NLRB Election ♦ NLRB is authorized to conduct election only when petition is filed with Board by:

1. Employee 2. Group of employees 3. Individual 4. Labor organization 5. Employer

NLRB Filing ♦ By employee or employee representative. ♦ 30% or more authorization cards allow Union to petition for election. ♦ To be eligible, employees must be in job categories Union claims appropriate for representation

in bargaining unit. NLRB Hearing ♦ Board investigates filing. ♦ Board sets conferences to seek consent of parties. ♦ If no consent to certification is obtained a formal hearing held. ♦ Board seeks to determine:

1. Size of petition compared to bargaining unit. 2. Validity of signatures. 3. If sufficient interest is represented. 4. Presence or absence of objective considerations for believing Union does not support

majority.

♦ If petition satisfies requirements, Board sets conference with both parties to see if they consent to NLRB election.

♦ NLRB holds formal hearing if either party expresses disagreement over:

1. Voter eligibility. 2. Bargaining unit composition. 3. Time, date, or place of election.


Bargaining Unit(s) ♦ Group(s) of employees represented by Union. ♦ Factors considered: ‘Community of Interest’.

1. History of collective bargaining. 2. Desire for establishment of organization of employees. 3. Special situations, such as skill level or physical location. 4. Employee interchange.

♦ Types of bargaining units.

◊ Single or multi-employer. ◊ Single or multi-plant. ◊ Plant-wide, departmental, or divisional.

♦ Excluded employees:

◊ A variety of employees are excluded from bargaining unit, including professionals, management, contractors, confidential, etc.

◊ The matters are resolved in hearing process. Bars (aka Prohibitions) to the Election Process The NLRB will ‘bar’ a petition for an election if certain situations are present: 1. A valid Contract exists – Contract Bar.

2. A valid election conducted within previous 12 months in the same unit – Statutory Bar.

3. Initial year following Certification has not elapsed – Certification-year Bar.

4. ‘Reasonable period’ after employer has informally recognized a Union has not elapsed –

Voluntary-recognition Bar.

5. An Unfair Labor Practice (ULP) charge is pending affecting the proposed bargaining unit – Blocking-charge Bar.

6. Prior (petition) Bar is still in place – Prior-petition Bar. Election Representation Types ♦ Consent Election: Agreement between employer and Union to waive pre-election hearing. ♦ Directed Election: Election resulting from formal procedures.


Post Election Proceedings Three principal types of disputes are resolved through post election procedures: ♦ Voter eligibility challenges

1. Election observers challenge eligibility of voters. 2. Challenges must be made from voter-list information before completed ballot is accepted

into ballot box. 3. Challenged ballots kept apart until NLRB determines validity.

♦ Unfair Labor Practices charges: 1. Violations of specific provisions of NLRB. 2. Handled by office of NLRB’s General Counsel.

♦ Election interference charges: 1. Involve allegations that one party violated administrative procedures. 2. Resolved through NLRB administrative procedures.

♦ Resolution of disputes may involve additional hearings. Certification of Results ♦ Determined after challenges and objections have been resolved. ♦ If the Union wins, the Board certifies it as exclusive representative of the bargaining unit.


Collective Bargaining Issues ♦ Mandatory Subjects for collective bargaining, which must be negotiated at request of either

party, include: 1. Compensation 2. Benefits 3. Working conditions 4. Seniority issues

♦ Permitted Subjects include:

1. Retirement benefits 2. Managerial control

♦ Subjects include: Union Security Clauses ♦ A Union Shop clause is STRONGLY preferred by Unions. Provision of the labor agreement

that requires employees to join the Union as a requirement for their employment, usually 30 to 60 days after being hired.

♦ Closed Shop clause is illegal! The closed shop provision - requiring Union membership at hiring

is a violation of the Labor-Management Relations Act – Taft-Hartley (1947). ♦ Agency Shop clause—alternative to Union Shop clause, stating that even if workers do not join

the Union, they pay equivalent amounts equal to Union dues and fees for the Union’s representative services.

♦ Right-to-Work states prohibit requiring membership in labor organization as condition of

employment—may result in prohibiting of a Union’s security agreements. ♦ Union dues commonly paid through Dues Check-off deduction on employee paychecks. ♦ Maintenance of membership clause should (must!) also be negotiated. No-strike Clause ♦ Union agrees not to strike during duration of contract. No-lockout Clause ♦ Company agrees not to close during labor dispute or during life of contract. Contract Administration ♦ Specifies duration of contract and lists agreements of both parties to ensure contract is applied

as intended. ♦ Also lists grievance and arbitration procedures.


Compensation, Benefits, and Working Conditions ♦ Contained in all labor contracts. Employee Security and Seniority ♦ Related to considerations by Union and management when determining promotions, layoffs, and

recalls. Management Rights ♦ Excludes certain areas or decisions from bargaining. ♦ Reserved rights doctrine gives management full authority over covered issues. ♦ Management prerogatives are generally found in contracts in broad statements with examples. Formal Grievance Process ♦ Process provides orderly way to resolve differences of opinion on contract. ♦ Employee files grievance with immediate supervisor. ♦ If grievance is not solved, formal written grievance proceeds to next level of hierarchy. ♦ If grievance is not settled, neutral outside arbitrator is utilized. ♦ Collective bargaining agreement almost always includes formal grievance procedure.


Arbitration Arbitration is third-party dispute resolution technique, which is designed to resolve conflicts between individuals or parties outside of a court of law. Labor arbitration is the predominant procedure used to resolve disputes between labor and management concerning the application or interpretation of an existing collective bargaining agreement. Since this type of arbitration determines the rights of a party to an agreement, it is sometimes referred to as a "rights" or, more commonly, as it grievance arbitration." This procedure is the focus of this program. There is another type of arbitration, which is used to resolve "interest" disputes. It involves a determination of the interests of the parties, in their effort to define the terms and conditions, which will be incorporated into a collective bargaining agreement. Under this procedure, an arbitrator or tripartite board decides what the terms and conditions of an agreement shall be. Interest arbitration is only invoked when the parties are unable to agree upon contract terms at the bargaining table. This type of arbitration has been used predominately in the public sector in disputes involving police and fire fighters as well as on an occasional basis in private industry in local transit, the printing industry, and in electrical contracting in construction. Sometimes use of this procedure is agreed to by the parties on a voluntary basis, but, especially in public disputes, it is required by law. In arbitration, the chief objective is for each side to try to convince an arbitrator that its case should be upheld. It is then up to the arbitrator to determine on the basis of the merits of the case as presented by the parties what the outcome shall be. Thus, there is a heavy burden on the parties to present a good, clear, and thorough statement of its case and supporting factual evidence and testimony at the hearing. There are key distinctions among mediation, conciliation and fact-finding versus arbitration. Arbitration results in a decision, which is final and binding on the parties by advance agreement. Mediation and conciliation are efforts by a third-party to bring the parties to an agreement on their own. The mediator or conciliator has no power to force a settle, since the parties have made no prior agreement to accept the conclusion. Fact-finding is an effort to obtain and point out the key facts in a dispute. Even when a fact- finding board makes recommendations, these carry no great force beyond the persuasiveness and the power of public opinion, which they generate. Voluntary and Compulsory Arbitration. Most arbitration in this country is voluntary. That means that the parties voluntarily agree to it, either as a general means of settling all disputes under an agreement or as a means of settling a particular dispute. Compulsory arbitration imposes the process on the parties as a matter of law or decree. In the United States compulsory arbitration was prevalent in wartime emergencies. Currently state laws pertaining to the public sector have provided for it in some public sector disputes in which the right to strike is forbidden by law, such as police and fire. The Postal Reorganization Act provides for compulsory arbitration of impasses in contract negotiations in the Postal Service.


♦ Preparing for arbitration: Documentation, witnesses, communications, and data collection. ♦ Duties of the Arbitrator: Adhere to Code of Ethics, decision based on evidence, giving full faith

and credit to labor contract. ♦ Types of Arbitrators: Permanent, Ad hoc, and Tripartite Panel. ♦ Primary sources of arbitrators: Federal Mediation and Conciliation Service (FMCS), American

Arbitration Association (AAA), and the National Academy of Arbitrators (the Academy). ♦ Voluntary versus Compulsory arbitration: Parties agree to submit differences versus law

requires situation to be submitted to arbitration. ♦ Arbitration after termination of labor contract: Involves formal complaint structure and dispute

may go to court. Influences regarding utilization of Arbitration versus Mediation: Decision makers in private organizations are:

• more apt to use analytic and speculative practices;

• more inclined to act when analytic and speculative practices are used and see less risk in decisions made this way; and

• less inclined to act when consultation and networking are used and see more risk in decisions made in this manner.

Decision makers in private organizations are less adverse to controversial decisions than their public sector counterparts.

Decision makers in public organizations see less risk in their choices than their private sector counterparts when faced with comparable decisions.


Mediation Mediation involves a meeting between disputants, their representatives and a mediator to discuss a potential dispute settlement. The mediator's role is to help the disputants explore issues, needs and settlement options. The mediator may offer suggestions and point out issues that the disputants may have overlooked, but resolution of the dispute rests with the disputants themselves. A mediation conference can be scheduled very quickly and requires a relatively small amount of preparation time. The conference usually begins with a joint discussion of the case, followed by the mediator working with the disputants both together and separately, if appropriate, to resolve the case. Many cases are resolved within a few hours. Perhaps most important, mediation works! Statistics show that 85% of commercial matters and 95% of personal injury matters end in written settlement agreements through mediation. ♦ Facilitation: The essence of mediation and conciliation is compromise. The successful

Mediator uses several techniques, timing, and interests to ‘facilitate’ an agreeable solution between disputing parties.

♦ Fact-finding: A process to investigate and assemble all the facts surrounding a dispute and

generally includes the issuance of a report – to which the disputants have a choice of accepting or rejecting.

Mediation: Shorter, Faster, Less Expensive: What's Not to Like?

Mediation is a simple concept, says The Justice Center of Atlanta: "Bring both sides of a dispute together. With the assistance of a neutral mediator, enable them to speak their mind fully, and to hear and understand each other. Help them find the common ground that may have existed all along, but was hidden by anger, or fear, or misunderstanding. That is the essence of mediation."

What should you expect at mediation? Here's a summary of the typical steps in the process:

1. Opening Statement by the Mediator The mediator's opening statement sets the tone for the mediation and provides ground rules. The content is up to the individual mediator, but typically it covers the following:

• Mediator's identity and qualifications.

• Mediator's role. "I am not a judge or a decision maker. My job is to facilitate communication."

• Assertion of neutrality and impartiality.

• Ground rules for the process, and the mediator's expectations for the parties.

• Confidentiality rules for what the mediator can and cannot reveal.

• Confirmations: -That the parties are there voluntarily, -That they are prepared to attempt to resolve the dispute in good faith, and


-That they have the authority to mediate and make agreements on behalf of the organization. 2. Opening Statements Each party presents an opening statement, typically covering:

• Its view of the dispute

• The relief or resolution that it thinks is appropriate

• Anything that they wish to add to shed light on their position

Usually the party taking action, the complainant, goes first. Both parties fully explain their positions, even if they become emotional. (Venting by the parties can be the first step in putting the dispute behind them and moving toward resolution.)

3. Joint Discussion The mediator generally starts the joint discussion by summarizing the parties' opening statements. Clarifying questions are then asked of each party so the issues can be properly identified, and so the mediator is satisfied that he or she understands the issues. The mediator may allow or encourage the parties to ask questions of each other.

4. Caucus with the Parties At some point in the discussion, the mediator typically breaks the parties into separate groups called caucuses. During this time, each group is in a different physical location. The mediator meets privately with each party. This step often lasts for several hours. Virtually everything discussed in the caucuses, unless it was previously disclosed, is confidential. The mediator does not reveal the information to the other party.

Caucuses and joint sessions may continue to alternate. At some point, the mediation process will come to a close.

5. Closure Either the parties reach agreement, partial or full, or they do not. In most cases the mediation session will close with at least some issues resolved. Once an issue has a specific solution agreed to, it is reduced to writing by the mediator, then reviewed and signed by the parties.

The mediation should end when settlement no longer seems possible, i.e., there is no more movement by the parties on any of the issues, and the parties and all possibilities seem exhausted, or if one of the parties withdraws from the mediation. However, the door should always be left open for future meetings as the parties may be amenable to settlement after time has passed, and particularly after a hard look at their next options.


Employer’s Unfair Labor Practices (ULPs) ♦ Interference, restraint, and coercion of employees involved in a Union’s activities or organizing. ♦ Threats of reprisal—any threat to intimidate or coerce employees to Act in certain way or

punish them for not acting in certain way. 1. Threats to close or relocate a plant or facility. 2. Statements that unionization necessarily leads to strikes and loss of jobs. 3. Statements implying that employees will lose exiting benefits.

♦ Making promises or granting benefits to keep employees from unionizing violates LMRA, as does soliciting grievances and agreeing to remedy them as election nears.

♦ Surveillance or interrogation of employees may constitute Unfair Labor Practice. ♦ Inciting anti-union activity may be considered Unfair Labor Practice. ♦ Domination and unlawful support of labor organizations. ♦ Dominating or interfering with formation or administration of labor organization violates LMRA. ♦ Domination of labor may occur when employer:

1. Creates labor organization. 2. Helps draft organization’s mission and bylaws. 3. Appoints organization officers. 4. Is member of organization’s bargaining team or grievance committee? 5. Helps conduct organizational business.

♦ Employee-employer committees’ goals to increase productivity and creativity are vulnerable to attack under NLRA, which outlaws company-controlled Unions.

♦ Employers must cautiously deal with employee participation committees based on Board’s

interpretation of labor-management relations (Electromation, Inc., December, 1993). ♦ Employee discrimination to discourage union membership. ♦ LMRA protects employees from being disciplined or discharged as result of taking part or

refusing to take part in Union activity. Retaliation ♦ LMRA prohibits employers from retaliating against employees who have filed charges or given

testimony under LMRA. ♦ LMRA also protects employees who threaten to file charges and refuse to commit perjury at

employer’s request.


Refusal to Bargain ♦ Refusal to bargain collectively with representative of employees is Unfair Labor Practice. ♦ Employers are not permitted to bargain with individual employees. Unfair Labor Practice after Union Certification ♦ Discrimination, domination, and refusal to bargain are most common ULPs after certification. Lawful Acts of Employers

1. Free Speech Guarantees employers right to free speech and right to file charges against Unfair Labor Practices.

2. Facilities Use

Employers may legally allow limited use of facilities to Union for meetings, membership mail, and bulletin board postings.

3. Disciplinary Action

Generally, employer’s right to discipline or terminate employees for misconduct is acknowledged under just cause.

4. Communications

Communicate through supervisors and in group meetings, as well as hire consultants to work against a union’s organizing attempt(s).

Remedies for Employer’s Unfair Labor Practices ♦ Remedy—legal means to correct wrong Act or reinforce correct act. ♦ Charges of Unfair Labor Practices against employers or Unions resolved through formal system

of adjudication. ♦ Employer who commits offense may be directed by LMRA/Board to:

1. Desist with misconduct. 2. Post notices agreeing not to engage in future illegal activity. 3. Order reinstatement of any employees unfairly discharge.


Union’s Unfair Labor Practices (ULPs) Unions are responsible for acts conducted by their agents and officers. This concept of shared responsibility puts Unions on more equal footing with employers. ♦ Establishes Union restraints and prohibits coercion. ♦ Requires duty of fair representation. ♦ Prohibits inducing unlawful discrimination by employer. ♦ Disallows excessive or discriminatory membership fees. ♦ Refusal to bargain. Filing of an Unfair Labor Practice Charge ♦ When NLRB receives ULP charge, preliminary investigation is conducted. ♦ Preliminary NLRB investigations and settlements. ♦ Charged party is encouraged to submit written account of their impression of facts. ♦ If charge is valid, Regional Director tries to settle issue. ♦ Settlement agreement may be either informal or formal.

1. Informal settlement involves clearly written statement providing for withdrawal of charge upon compliance by charged party.

2. Formal consent agreement normally includes written statement of facts underlying charge, waiver of right to public hearing, and consent to issuance of formal NLRB order.

Complaints and Hearings ♦ Prior to hearing, parties generally conduct their own investigations. ♦ The complaint discusses allegations and summarizes facts upon which they are based. ♦ An Administrative Law Judge (ALJ) conducts the hearing. ♦ Proceedings follow the Federal Rules of Evidence. ♦ Either party dissatisfied with the recommended Order may file exceptions and supporting briefs

with the NLRB in Washington, DC within 28 days of decision.


Judicial Review and Enforcement ♦ If charged party will not comply with NLRB’s decisions, the NLRB must seek enforcement of

the order in United States Court of Appeals. ♦ Appellate court may enforce the NLRB’s decision, orders the NLRB to gather additional

evidence, or deny enforcement. ♦ Appellate Court’s decision is binding on the NLRB but does not set a precedent. ♦ United States Supreme Court decides any conflicts among the Circuit Courts. Strikes and Secondary Boycotts ♦ Strike is refusal by employees to work; is protected activity. ♦ Strikes fall into two primary categories, according to objectives they seek — 1) Economic or

remedies for 2) Unfair Labor Practices. Protected Concerted Activities ♦ Right to strike and to picket is protected. ♦ Safety strikes are usually exempt from arbitration procedures. ♦ Picketing is lawful as long as purpose is solely to persuade employer to adhere to local wage

and benefit standards. ♦ Sympathy strikes are legal unless they violate contract clauses. ♦ Note: Workers not represented by a Union may also strike – the NLRA covers everyone. Unprotected Activities ♦ Strike may be unlawful if purpose or methods are illegal (e.g. Secondary Boycotts, etc.). ♦ Strikes in violation of no-strike clause. ♦ Consumer picketing to convince customers not to buy product. ♦ Wildcat strikes: Work stoppages that occur during the life of the collective bargaining

agreement without approval of Union leadership and in violation of a no-strike clause. ♦ Slowdowns: Partial or intermittent strikes that are not protected and which may result in

discipline or discharge of the workers involved.


Scope of Secondary Boycott Provision Employer may lose their neutrality and protection against Union pressure in the following cases:

♦ Ally Doctrine: Occurs when a struck employer effectively uses the employees of a neutral

employer as strikebreakers. ♦ Alter Ego Doctrine: Used to determine whether an employer is secondary or neutral in a labor

dispute. ♦ Common Situs Picketing: Occurs when lawful picketing of a primary employer affects a

secondary employer who occupies common premises. ♦ Consumer Picketing: Picketing used by the Union to inform customers; it consists of activities

such as distributing handbills, carrying placards, and urging customers not to purchase products from the business.

♦ Double Breasting: Occurs when commonly owned companies perform similar work with

separate but almost identical operations – one Union and one not. ♦ Hot-cargo Clause: Past agreements between an employer and a Union that permitted Union

members to refuse to handle goods made by non-union labor or a struck plant. Compensation during Strikes ♦ Unions generally maintain strike fund to offset loss of wages during strike – desirability of large

/ high versus low fund? ♦ In a few states, workers may collect Unemployment Compensation. Strike Activities ♦ To prepare for strike, Unions generally:

1. Sets up legally allowed number of pickets. 2. Trains employees on how to picket. 3. Mobilizes support among allies in other Unions and public. 4. Arranges for strike benefits for employees. 5. Assists with public aid for employees. 6. Establishes hotline to provide up-to-date information.

♦ In face of strike threat, management:

1. Works with supervisors to arrange for work continuation. 2. Arranges for company security. 3. May employee replacement workers. 4. Establishes communication program.


Organizations attempting to Operating during a Strike ♦ Employers usually (endeavor) continue to operate during strikes with supervisors, non-striking

employees and / or replacements. Why? Replacement of Strikers ♦ At end of strike, employers are required to reinstate strikers if strike was result of ULP. ♦ Employers are not required to displace workers who replaced economic strikers; they must,

however, offer reinstatement to employees who were on strike as future employment opportunities develop.

Negotiations

♦ Negotiation subjects or topics: 1. Mandatory Subjects: Issues that are identified specifically by labor laws or court decisions

as being subject to bargaining - wages, hours, and other terms and conditions of employment.

2. Voluntary Subjects: Issues that the parties agree to negotiate that are neither mandatory nor illegal.

3. Illegal Subjects: Topics or issues that are ‘barred’ by labor laws or court decisions. ♦ Management Rights or Prerogatives: Those rights reserved to the employer to manage, direct,

and control its business. ♦ Collective Bargaining patterns

◊ Pattern or Parallel Bargaining: Bargaining in which Unions negotiate provisions covering wages and other benefits that are similar to those provided in other agreements existing within the industry or region.

◊ Coalition or Multiple Employer Bargaining: Occurs when more than one employer negotiates with the Union.

◊ Coordinated: Occurs when an employer bargains with several Unions simultaneously, but separately.

♦ Negotiation Postures

◊ Positional Negotiation A type of contract negotiation in which the following outcomes occur: 1) people lock themselves into positions and find it difficult to move away, 2) parties lose sight of the underlying problems to be resolved, and 3) emphasis is placed on winning the position.

◊ Principled Negotiation A type of contract negotiation based on four premises: 1) separate the people from the problem, 2) focus on interests, not positions, 3) invent options for mutual gain, and 4) insist on objective criteria.

♦ Distributive and Integrative bargaining: Takes place when the parties are in conflict over an

issue, and the outcome represents a gain for one party and a loss for the other; it usually occurs over items such as wages and premium pay.

♦ Good-Faith requirements: Both parties enter into a discussion with fair and open minds and a

sincere desire to arrive at an agreement.


♦ Unlawful Circumvention: Occurs when an employer’s attempts at direct communication with employees begin at the same time (or before) as contract negotiations.

♦ Unilateral changes in terms of employment

◊ Once contract has been negotiated, employer cannot change its terms. ◊ Unilateral changes may be justifiable when:

1. Proposed change is consistent with past practice. 2. Union has waived its right to bargain. 3. Unit employees are not adversely affected by change. 4. Change is required by law. 5. Employer can cite extraordinary circumstances.

♦ Notice requirements ◊ To change existing collective bargaining agreement, other party must be notified 60 days

before expiration of contract or other deadline for modification of contract. ◊ Written notice must include offer to meet and bargain. ◊ Initiating party must notify Federal Mediation and Conciliation Service and state agencies

within 30 days of notifying other party. ♦ Duty of successor Employers or Unions. Enforcement Provisions ♦ Injunction: A Court Order compelling parties to do or not to perform a specific course of action. ♦ National Emergency Strike.

◊ President authorized by LMRA to appoint Board of Inquiry if threatened or actual strike affects entire industry or substantial part of industry and endangers national health and safety.

◊ President is also authorized to direct Attorney General to seek injunction in federal court against strike,

◊ If injunction is issued, parties must seek settlement through Federal Mediation and Conciliation Service.

◊ If 80 days pass without settlement, strike may proceed. ◊ Mediation and conciliation ◊ Professional, neutral third party invited to assist in facilitating negotiations. ◊ Federal Mediation and Conciliation Service (FMCS). ◊ Mediators have no power to force agreement—seek to persuade parties to reach agreement.


The Weingarten Rule or Right: “NLRB's Extension of the ‘Weingarten Rule’ to Nonunion Workplaces was a Reasonable Interpretation of NLRA Section 7.” The term your "Weingarten Rights" (Union representation during Company interrogations) resulted from a U.S. Supreme Court case in 1975 - NLRB vs. J. Weingarten, Inc. The case involved a clerk being investigated by the Weingarten Company, hence these rights became known as "Weingarten Rights". In NLRB v. J. Weingarten, Inc., 420 US 251 (1975), the United States Supreme Court upheld the National Labor Relations Board's (NLRB's) determination that "Section 7 [of the National Labor Relations Act (NLRA)] creates a statutory right in an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline." The Weingarten Court held that such a right derived from Section 7 of the National Labor Relations Act, which grants employees the right to engage in "concerted activities for the purpose of mutual aid or protection." The National Labor Relations Board recently ruled that non-unionized employees, like their unionized counterparts, have the right to be represented by a coworker at any investigatory interview conducted by an employer, if the employee reasonably believes the interview could lead to disciplinary action against the employee. The court held that the NLRB's decision was a "reasonable interpretation of Section 7 of the NLRA" and granted its cross-application for enforcement on this issue. The court also held, however, that the NLRB's retroactive application of its extension of Weingarten was error. In affirming the NLRB's extension of Weingarten to nonunion employees, the court rejected the employer's arguments that a) "the presence of a [nonunion] coworker in an investigatory interview is neither 'concerted' nor 'for mutual aid and protection' and, therefore, ... not within the ambit of Section 7;" b) "the application of Weingarten in the nonunion workplace is at odds with Section 9(a) of the Act .... ;" and c) "the Weingarten rule violates the First Amendment rights of nonunion employers to speak individually with their employees." In 2004, the NLRB again decided that non-union employees are not entitled to ‘Weingarten Rights’ under the National Labor Relations Act, reversing what had been the NLRB’s position on the issue since 2000. Given the NLRB’s history on this issue, the law in this area will likely change again with future changes in the membership of the NLRB. For now, however, an employer is free to deny the request of a non-union employee for the presence of a co-worker during an investigatory interview.

Why Should a Steward (or Representative) be Present?

The presence of a Steward can help in many ways. For example: 1. The Steward can help a fearful or inarticulate employee explain what happened. 2. The Steward can raise extenuating factors. 3. The Steward can advise an employee against blindly denying everything, thereby giving the

appearance of dishonesty and quilt. 4. The Steward can help prevent an employee from making fatal admissions. 5. The Steward can stop an employee from losing his or her temper, and perhaps getting fired

for insubordination. 6. The Steward can serve as a witness to prevent supervisors from giving a false account of the

conversation.


Removing a Union’s Right to Employee Representation Decertification ♦ Provided by provisions in the Taft-Hartley Act (1947); specifically provides means for

employees to terminate a specific Union’s representation. ♦ Process starts when employee or group of employee’s requests a decertification election.

◊ Employees must circulate petition. ◊ Petition is then filed with NLRB. ◊ Must be signed by at least 30% of employees to be represented by Union in covered

bargaining unit. ◊ Must be filed between 60 and 90 days before the expiration of current contract (in all

industries but health care, in which the window is 90-120 days prior to the contract expiration).

◊ NLRB assigns agent to investigate. ◊ If petition is found valid:

∗ Secret-ballot election is held. ∗ Constraints are similar to those for certification elections. ∗ Majority or tie vote removes Union.

◊ After decertification election, no elections will be allowed in involved unit for one year. Deauthorization ♦ Removes authority of bargaining representative to enter into and enforce a union security

clause. ♦ To start deauthorization process:

◊ One or more employees file petition to withdraw Union’s authority. ◊ Petition must be accompanied by evidence of support of 30% of bargaining unit. ◊ NLRB assigns an agent to investigate process. ◊ Regional Director may order election even without a hearing on disputed cases. ◊ Majority of vote’s case determines outcome — a no vote same as a vote against.


Public Sector Labor and Employee Relations The United States is in the process of a public-policy debate about public-sector unionism and collective bargaining. The apparent trigger of this debate was the fiscal crises that state and local governments have been experiencing since 2008. The debate largely centers on the extent to which public employee unions have contributed to this crisis through the pay and benefits they have negotiated for public employees.

Significance of Public-Sector Labor Relations Ø Over one-third of federal, state, and local public employees belong to unions. Ø Union density is four times higher in the public-sector than the private-sector. Ø Public-sector unions are strongest in the Northeastern states. Ø The “free rider” problem (at 66% of represented employees) is an important problem. Ø Growing governmental willingness to resist the concerted actions of public-sector unions.

Labor Legislation in the Public Sector State-Sector Legislation

Ø Union security legislation varies among states. Ø Collective bargaining rights limited to specific groups. Ø Restricted scope of bargaining issues. Ø Right-to-strike limited to specific employee groups. Ø Mandatory mediation, fact-finding, and binding interest arbitration.

Examples of states that have public sector collective bargaining laws covering Police & Fire, State, Education and Municipal Employees: Alaska Massachusetts New York Connecticut Michigan Ohio Delaware Minnesota Oregon Florida Montana Pennsylvania Hawaii Nebraska Rhode Island Illinois New Hampshire Vermont Iowa New Jersey Wisconsin Maine New Mexico SOURCE: Bureau of National Affairs, “Public Sector Bargaining—State Comparison Chart,” in Collective Bargaining Negotiating and Contracts, May 18, 2000, pp. 8:2901–2952; updated by “State Labor Laws,” BNA Labor Relations Reporter, Washington, DC., 2003. Federal-Sector Labor Relations Legislation Civil Service Reform Act of 1978

Ø Operates within the Civil Service merit system. Ø Federal Labor Relations Authority (FLRA). Ø General Counsel investigates ULPs. Ø Federal Service Impasse Panel (FSIP) assists in resolving negotiation impasses.

Determination of Appropriate Bargaining Units

Ø Community of Interest. Ø Efficiency of agency operations. Ø Criteria essentially parallel those used by NLRB.


Union Recognition

Ø An agency gives exclusive recognition to the union winning a majority in a recognition election.

Negotiable Subjects in the Federal Sector

Ø Mandatory Subjects. Ø Permissible Subjects, but no requirement to bargain over Permissible Subjects. Ø Personnel policies and practices. Ø Working conditions. Ø Wages (including retirement and life and health insurance). Ø Agency management practices:

– Managerial, directional, and operational decisions – Personnel decisions: hire, fire, promote

Permissible Subjects that could be included in a Master Agreement in the Federal Sector: Union recognition Sick leave Official time Health and safety Discipline and counseling Contracting out Grievance procedure and arbitration Child care services Dues withholding Call-back, standby, and on-call duty Employee performance Workers’ compensation Merit promotion Performance appraisal Training Hazard and environmental pay Equal employment opportunity Reduction-in-force Travel Position classifications Annual leave Unfair Labor Practices in the Federal Sector

Ø Very similar to those prohibited by Executive Orders and the LMRA. Ø Specific ULPs. Ø Failing to cooperate in impasse resolution activities. Ø Encouraging a strike or slowdown. Ø Employees can file a grievance and file a claim with a statutory agency.

Negotiated Agreements

Ø Must include a grievance procedure with binding arbitration as a final step. Interest Dispute Impasse-Resolution Procedures in the Public Sector

Mediation Civil Service Reform Act defines grievance procedure. Ø If management and Union disagree during negotiations, they may go to mediation. Ø If issues are not resolved, they may proceed to binding arbitration. Ø The use of a third party neutral that has no binding authority to decide a dispute to assist the

parties in reaching an agreement.


Fact-Finding Ø The use of a third party neutral to conduct quasi-judicial hearings to develop an objective

assessment of the parties involved and promulgate a nonbinding recommendation for settlement positions.

Interest Arbitration Ø The use of a third party neutral to settle a negotiation impasse by issuing a binding

settlement decision after considering the positions of both parties. Ø Conventional arbitration: the arbitrator decides the final settlement outcome. Ø Final Offer Arbitration (FOA): the arbitrator must choose (without compromise) one of

the offers submitted by the parties. Referendum Ø Submission of unresolved issues to a taxpayer referendum in an attempt allow an outsider

determine the cost of a negotiated settlement. Ø Advantages: Ø Ensures a pragmatic, realistic negotiating environment Ø Motivates citizens’ interest in public employment. Limitations on Strikes Ø Striking federal employees can be punished with felony charges and dismissal.

Similarities Between Private- and Public-Sector Bargaining

1. Public-sector practitioners use a modified private-sector approach to bargaining. Ø Public-sector bargaining statutes follow private-sector statutes Ø Private-sector unions represent many public employees 2. Public-sector employees join unions for the same reasons as private-sector employees 3. Bargaining is influenced by negotiators’ personalities and use of the bargaining power

model to raise management’s cost of disagreeing. Differences Private- and Public-Sector Bargaining

1. Market economy does not operate in the public sector. 2. Available funding can constrain the bargaining process. 3. Employee rights are limited to maintain discipline and harmony and continuity of service. 4. Bargaining is decentralized throughout the departments of the public organization. 5. Bargaining units are more difficult define: supervisors and managers can be unionized. 6. The sovereignty doctrine limits management’s authority to bind the government to labor

contract terms. 7. Negotiable issues are limited by the presence of civil service merit systems. 8. Multilateral bargaining reflects the complexity of public organizations. 9. Public-sector unions can engage in end-run bargaining in directly appealing to a legislative

body. 10. Grievance administration must include binding arbitration as a final step. 11. Public employees have no or a very limited right to strike.


Public Sector Labor and Employee Relations Summary The Market Environment Public Sector Private Sector Output produced Unpriced goods and Priced goods and services services; hard to measure for private consumption public goods or investment Competition “Monopoly” in local Competitive markets in markets most cases Budget conditions Budget constraints: raise Profits “buffer” changes taxes, intergovernmental in wages; firms raise or grants, short-term debt lower prices to change revenue Entry and exit of employers Residents and businesses New firms enter or leave (taxpayers) can move given industry conditions across borders, few employers have options Regulatory Environment Key labor relations Federal: Civil Service National Labor Relations Act Reform Act; State and and Railway Labor Act Local: State Labor Relation’s legislation Scope of bargaining Restricted issues Broad range, some mandatory Conflict tools Strikes often prohibited Right to strike with Taft-Hartley Act limitations Third party Compulsory arbitration Some mediation, as governed common by collective agreements

Future Prospects for Public-Sector Labor Relations … What will the future hold?

1. An intense emphasis on reducing costs and improving efficiency at all levels of government. 2. Public-sector union membership will increase. 3. Changing operations in governments causing increased rivalry among public-sector unions. 4. Little change in union tactics and actions. 5. More emphasis on merit-based compensation. 6. Increased cooperation and collaboration. 7. ???

Documents

Twin Cities Human Resources Associationc.ymcdn.com/sites/ Cities Human Resources Association SHRM Certification Preparation Course – Spring 2014 Employee and Labor Relations Session