1. Employment law for human resource practice, 5e
David Walsh
Employment law for human resource practice, 5e
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2. Unions & Collective Bargaining
Chapter 14
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3. Chapter Outline The Idea of Collective Bargaining
The National Labor Relations Act (NLRA)
Unfair Labor Practices (ULPs)
Union Organizing & Representation Elections
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4. The Idea of Collective Bargaining (1 of 3)
Collective bargaining recognizes the value of employees banding together to deal with their employers
Labor unions play a critical role in this
Unions negotiate with employers to obtain labor agreements
But collective bargaining is wildly unpopular with U.S. employers
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5. The Idea of Collective Bargaining (2 of 3)
The National Labor Relations Act (NLRA) is the principal federal law concerning self- organization & collective bargaining
Administered by the National Labor Relations Board (NLRB)
The Railway Labor Act (RLA) governs collective bargaining for railroads & airlines
Administered by the National Mediation Board (NMB)
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6. The Idea of Collective Bargaining (3 of 3)
The Civil Service Reform Act (CSRA) governs collective bargaining by federal government employees
Administered by the Federal Labor Relations Authority (FLRA)
State laws or executive orders provide for collective bargaining by some or all state and local government employees in more than 40 states
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7. The Nat’l Labor Relations Act
Its duty is to protect the right of employees to engage in “concerted activities” and to decide whether or not to form a labor union for the purposes of negotiating with their employer
Supervisors and managers are excluded from this protection, except when they are retaliated against for opposing an unfair labor practice
Whether nurses are supervisors is contested
The U.S. Supreme Court held that senior nurses on duty who make work assignments for aides, and monitor their work were supervisors
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8. Employee Rights under the NLRA
Engage in self-organization
Form, join, or assist labor organizations
Bargain collectively with their employer through representatives of their own choosing
Go on strike
Engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection
Refrain from such activities
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9. Employee Rights under NLRA - Concerted Activity
FOR NLRA protection, activity must be:
Concerted activity undertaken with or on behalf of other employees, not on behalf of an individual employee only
Undertaken in “mutual aid or support” of a group, not solely for an individual employee’s benefit
The activity must be related to employees’ concerns regarding their ages, hours, terms and conditions of employment
The activity must not be extreme or abusive, malicious, defamatory or highly profane
Online communications can also qualify
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10. Unfair Labor Practices (1 of 3)
Unfair labor practices; Employers must not:
Interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA
Dominate or interfere with the formation or administration of a labor organization
Discriminate against employees for the purpose of encouraging or discouraging membership in any labor organization
Retaliate against employees for filing charges or giving testimony under the act
Refuse to engage in collective bargaining
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11. Unfair Labor Practices (2 of 3)
Unfair labor practices; Unions must not:
Restrain or coerce employees in the exercise of their rights under the Act
Cause an employer to discriminate against an employee for the purpose of encouraging or discouraging membership in a labor organization
Refuse to engage in collective bargaining
Broaden labor disputes to include neutral employers (“secondary boycott”)
Charge excessive or initiation fees or dues
Cause an employer to pay for work not performed (“featherbedding”)
Picket for more than 30 days for the purpose of obtaining union recognition
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12. Unfair Labor Practices (3 of 3)
A labor organization is:
Any organization…or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work
Employee participation programs which include employees in decisions previously reserved for management, may be deemed “labor organizations” but are likely dominated by employers, so may violate the NLRA
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13. Union Organizing & Representation Elections (1 of 2)
Legal claims under the NLRA, especially interference with self-organization and discrimination against union supporters are common during periods when employees are attempting to form unions
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14. Union Organizing & Representation Elections (2 of 2)
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15. Union Organizing & …Elections – Union Organizing Campaigns
A union organizing campaign typically includes:
Discussion and persuasion among workers
Distribution of literature
Wearing of buttons & other symbols of support
Requests to sign petitions or authorization cards
If sufficient support is enlisted, the NLRB may hold an election to determine whether a union will be certified as the legal representative of the employees
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16. Union Organizing & …Elections – Employer Responses… (1 of 2)
Asking employees about their attitudes towards unions is not a per se violation of the NLRA, but tends to be intimidating and coercive
Employers should refrain from interrogating or polling employees to determine who wants a union or how employees intend to vote
Employers may state their views regarding unionization at meetings to which they may require attendance, but may not threaten reprisals or promise benefits for voting a certain way
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17. Union Organizing & …Elections – Employer Responses… (2 of 2)
Employers must:
not discharge or discriminate against pro-union employees
allow employees to engage in discussions about unionization at work during nonwork time
permit employees to wear union buttons and the like, and engage in rallies
Employers may deny nonemployee organizers access to workplaces and private property surrounding them if the organizers have other access to the employees
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18. Union Organizing & …Elections – Rep Election Procedures… (1 of 4)
NLRA has procedures for representation elections
The group of employees entitled to vote in the election must be determined by the NLRB to be an appropriate bargaining unit
The determining factor is whether employees, who may hold differing job titles and be spread across many workplaces, share a “community of interest”
Factors to be considered include similarity of skills, interrelationship of tasks, common pay systems, supervision, and personnel policies
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19. Union Organizing & …Elections – Rep Election Procedures… (2 of 4)
For the NLRB to order an election, at least 30% of the employees in a bargaining unit must desire union representation, a showing typically made by employees signing authorization cards
If a majority of employees who cast votes choose union representation, the NLRB will certify the union as the “exclusive representative” of all employees in the unit
The NLRA also provides for decertification elections, in which employees decide whether they want to continue to have union representation
Voluntary recognition of a union by an employer is also permitted under NLRA
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20. Union Organizing & …Elections – Rep Election Procedures… (3 of 4)
Frustrated by delays in the process, unions are seeking to gain recognition through a card- check procedure in which the employer agrees to recognize the union if a majority of employees sign authorization cards
Unions seeking this procedure also attempt to negotiate neutrality agreements, where employers promise to remain neutral, not oppose unionization
A union is the exclusive representative of the unit, preventing employers from dealing with employees individually re pay, hours, etc.
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21. Union Organizing & …Elections – Rep Election Procedures… (4 of 4)
Representation by a union is distinct from membership
Because some members might prefer to enjoy the benefits of union representation without paying for it, unions negotiate with employers to include union security provisions in their labor agreements, requiring all employees in the unit to pay dues, etc. or be fired by the employer
But the NLRA permits states to pass laws, known as right-to-work laws, making it illegal to incorporate union security provisions into labor agreements
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22. Union Organizing & …Elections – Duty to Bargain in Good Faith
It is an unfair labor practice to refuse to bargain
Both parties have a duty to engage in good faith bargaining
Difficult to determine when there is lack of good faith
If raised by either party, a Mandatory topic must be negotiated over
If a permissive topic is raised, the other party can decline to discuss it
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23. Union Organizing & …Elections – …If Cannot Reach Agreement? (1 of 3)
An impasse is reached when negotiations have become deadlocked, and both parties assume further negotiation would be futile
If the parties agree, a mediator may be called in, but the mediator cannot impose an agreement
If the parties are unable to reach agreement and a bargaining impasse is reached, then the employer can unilaterally implement its last, best and final offer
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24. Union Organizing & …Elections – …If Cannot Reach Agreement? (2 of 3)
Most negotiations conclude without a strike
Strikers are not quitting, but trying to pressure their employers to act differently
Private employers must not terminate employees for engaging in strikes
Strikes, picketing, and related activities constitute concerted activity
Federal government employees do not have the right to strike
Strikers may not be fired, but can be replaced
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25. Union Organizing & …Elections – …If Cannot Reach Agreement? (3 of 3)
The rights of strikers depends on whether the strike is an economic strike or a ULP strike
An economic strike pressures an employer to meet employee demands
Strikers may be temporarily or permanently replaced
Unfair labor practice (ULP) strikes are undertaken in response to employer ULPs to make them comply with the law
Strikers may be temporarily replaced, and must be reinstated to their jobs on an unconditional request
In some circumstances, employers may legally engage in a lockout of employees
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26. Union Organizing & …Elections – Enforcing Labor Agreements (1 of x)
Successful negotiations result in a labor agreement
Employers must abide by the agreement
Employees who believe their contractual rights have been violated may file grievances
Union representatives and management will review the grievance, and resolve it according to the labor agreement, or if they fail to agree, an arbitrator may decide the dispute in a grievance arbitration
Arbitrators may find a binding past practice to exist when past practice is clear
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27. What Would You Do?
Your small “big box” store recently acquired a manager who formerly worked at Wal-Mart, which has a long-standing opposition to unions. Over the past few years, some of your employees have talked about unionizing, but your low-key approach to handling it has kept you union-free. The new manager, upon hearing talk about unionizing from one of his subordinates, is taking a hard line, telling the employee he will be fired if he continues to talk about unionizing. What would you do?
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28. Next: Chapter 15– Occupational Safety & Health
How “safe” is “safe enough?”
What should you do when the OSHA inspector comes calling?
What should you do to prevent his coming?
The answers to these questions and more are next.
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