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Module 5: Employee and Labor Relations 20% PHR 14% SPHRNOTES 5-1: Laws Affecting Employee & Labor Relations p. 1-43 5-2: Employee Relations & Organizational Culture p 5-3: Employee Involvement Strategies p 5-4: Measuring Employee Attitudes p 5-5: Policies, Procedures, & Work Rules p 5-6: Discipline 7 Compliant Resolution p 5-7: Labor Relations Legislation & Union Organizing p 5-8: Unfair Labor Practices p 5-9: Collective Bargaining p 5-10: Strikes, Picketing, and Secondary Boycotts p Any student use of these slides is subject to the same License Agreement that governs the student's use of the SHRM Learning System materials. © SHRM
Labor Organization A labor organization is:any organization of any kind, or any agency 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. National Labor Relations Act (NLRA) NOTES p. 2 Employee & labor relations involves the processes of developing, implementing, administering and evaluating the workplace in order to maintain relationships & working conditions that balance employer/employee needs & rights in support of the organization’s goals & objectives A labor organization is any organization of any kind, or any agency 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. Early unionization efforts & legislative responses early attempts to organize workers such as Knights of Labor in 1869, were not effective with a generally unskilled workforce. Samuel Gompers established the American Federation of Labor in 1886 & created what was called “bread & butter” unionism. The AFL emphasized getting workers better pay & benefits & improving safety and working conditions. © SHRM
Milestones in Employee and Labor RelationsNOTES p. 5 Sherman Anti-trust Act 1890 – primary purpose was to prevent monopolistic practices of employers but was applied by federal courts to labor unions & labor activities. Clayton Act of 1914 – was designed to withdraw the power of federal courts to enjoin labor activities trough the antitrust laws but it proved to be less than truly effective Norris-LaGuardia Act – bars in most cases, the issuance of federal court injunctions against labor disputes Later legislation affecting employee rights see p. 6 & 7 for detailed list FLSA provides some wage protections Civil Rights Act of 1964 Age Discrimination Act of protection against age-based discrimination Occupational Safety & Health Act of 1970 – worker safety issues Retirement Income Security Act of 1974 – regulated retirement & certain welfare benefits Civil Service Reform Act 1978 – employment rights extended to federal workers American with Disabilities Act 1990 & ADA Amendments 2009 – FMLA defined employee rights to take unpaid leave Uniformed Services Employment & Reemployment Act 1994 (USERRA) HIPPA 1996 Genetic Information nondiscrimination Act (GINA) 2009 Figure 1 Milestones in Employee & Labor Relations p. 5 © SHRM
Why People Join Unions Poor communication by management TransparencyLack of fairness/consistency Discipline process Seniority system Failure to recognize problems Willingness to listen to and address complaints Perceived lack of control or input Avenues for employee feedback Employee participation programs Poor communication by management Transparency Poor performance at supervisory level Training Access to strategic information Perceived gross economic inequities Governance NOTES p. 7 Employees still join unions because of the following reasons: Lack of fairness/consistency in applying policies Failure to recognize problems – having a complaint resolution process is not enough. Organizations that avoid unions cultivate willingness among management to listen to employee complaints, admit when a problem may exist & respond appropriately. Perceived lack of control/input – employees benefit from having a voice in their work lives. There must be avenues for raising & resolving complaints & opportunities to provide input & feedback. Poor communication by management – poor communication practices create the perception that management does not consider employees in decisions. Management rationales & motivations are not transparent & can be misunderstood. Employee satisfaction depends on clear & truthful communication of performance expectations & criteria for retention, advancement, discipline, as well as explanations for strategic decisions. Poor performance at supervisory level – supervisors are most immediate & apparent representation of management to employees. Perceived gross economic inequities – perceptions about disparity between management & employee pay & benefits might lead employees to believe the company can afford higher pay and also have an emotional impact that threatens a foundation of mutual respect & trust. To counter appeal of unions, employers have initiated progressive management practices through employee involvement programs, workplace committees, etc. They have also implemented policies such as flexible work arrangements, health care for unmarried partners, etc. Employer Trends - see p. 8 Figure 1 Milestones in Employee & Labor Relations p. 5 © SHRM
Recent Union Trends Contrasting strategies for AFL-CIO and Change to Win Concern over health insurance, pension issues, and corporate bankruptcies Adoption of aggressive organizing strategies New forms of membership (associate members) Recruiting of nontraditional members Role of NLRB and general counsel NOTES p. 9 A steady decline in union membership has been accelerated by economic downturn as the economy loses manufacturing & construction jobs. Union membership has gone from 20.1% in 1983 to 11.9% in 2010. Recent Union Trends Contrasting strategies for AFL-CIO & Change to Win – AFL strategy shifted from focus on organizing to advancing a legislative agenda & lobbying at federal & state level. In 2005, in protest over the direction of organized labor, several large & influential unions of the AFL-CIO withdrew from the federation & formed Change to Win which still includes the Teamsters, Service Employees International Union, United Food & Commercial Workers & United Farm Workers. Concern over health insurance, pension issues & corporate bankruptcies Since 1987, cost of college education has doubled, the # of people without health insurance has increased by 50% and real wages remained constant until beginning to decline in 2008 due to the recession. Employees are increasingly concerned with lack of financial stability & control over their jobs & a sense of economic unfairness. Trend by large corporations to use bankruptcy to rescind collective bargaining agreements & pension obligations. Health care & pension issues have become contentious negotiating points. Adoption of aggressive organizing strategies – vast array of media being used to spread union messages New forms of membership (associate membership) – anyone paying dues to a union is considered a member & membership does not require that the member’s union is recognized as representing their workplace. Some unions use “pre-union” groups to obtain initial employee commitment. Recruiting of nontraditional members – formerly nontraditional industries & groups & specific locations Role of NLRB & general counsel – typically reflects the political views of the party occupying the White House. © SHRM
National Labor Relations Act (Wagner Act)Key act that applies to all workers, not just union workers. Employees shall have the right to: Self-organization. Form, join, or assist labor organizations. Bargain collectively through representatives of their own choosing. Engage in concerted activity for the purpose of mutual aid and protection. Refrain from such activities. Section 7 rights NOTES p. 16 Impact of Law on Employee Relations HR professionals play a key role in labor relations by developing policies & procedures that help ensure organizations & managers/supervisors remain in compliance & out of court. Employee Rights Under the National Labor Relations Act (NLRA) or Wagner Act was passed in 1935 & significantly amended in 1945 by the Labor-Management Relations Act, or Taft-Hartley Act for the purpose of protecting & encouraging the growth of the union movement. NLRA provisions do not apply only to union members, the rights granted by the law apply to all workers. KEY POINT p. 17 NLRA - Section 7 rights Self-organization Form, join, or assist labor organizations Bargain collectively through representatives of their own choosing Engage in concerted activity for the purpose of mutual aid and protection Refrain from such activities These are commonly referred to as Section 7 rights. Section 8 of the NLRA prohibits employers & unions from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. Employers must abide by NLRA provisions re: respected activities which include: Objections to harassment Refusing to work under dangerous conditions Protected concerted activity such as honoring a picket line, refusing voluntary on-call work, filing grievances or protesting discrimination Petitioning employer for resolution of some issue Effective 2011, NLRB required that most private-sector employers, including labor unions, post employees’ rights under NLRA in the same locations used to display other workplace notices. Exempts employers not covered by NLRA (agricultural, airline, railroads) & small employers (doing less than $50,000 in interstate business)***since publication of SHRM learning materials, this requirement has been delayed until April 30, 2012. © SHRM
Employee Relations and EEO LawsEEO laws prohibit employment discrimination. Laws provide protection that some employees once looked to unions to provide. NOTES p. 19 Employee Relations & EEO Laws - since passage of the Civil Rights Act of 1964, employees have gradually been looking less to unions to protect their rights. Instead, there has been increased pressure on state & federal legislative bodies to enact statutory laws protecting employee rights. The resulting, continued civil & personal rights legislation has lead to a significant rise in employee relations litigation. EEO laws prohibit employment discrimination Laws provide protection that some employees once looked to unions to provide See list of legislative acts on p. 19 © SHRM
Common Law Based on court decisions rather than statutory law.Employment-at-will (EAW) is one of the most important common-law doctrines. Employers have the right at any time, with or without prior notice, to hire, fire, demote, or promote anyone they choose unless there is a law or contract to the contrary. Employees may quit at any time for any reason, with or without prior notice. NOTES p. 20 Common Law is a concept inherited by the U.S. from its British roots and is based on court decisions rather than codified laws (statutory law) & is recognized on the federal level & in all states except Louisiana (which follows the Napoleonic Code) Employment-at-will (EAW) is one of the most important common-law doctrines Employers have the right at any time, with or without prior notice, to hire, fire, demote, or promote anyone they choose unless there is a law or contract to the contrary Employees may quit at any time for any reason, with or without prior notice KEY POINT p. 20 It may be useful to distinguish between employment-at-will and the right to work: Under EAW, employers have the right at any time, with or without prior notice, to hire, fire, demote & promote whomever they choose for an reason, unless there is a clear statement of public policy, law, or contract to the contrary. Similarly, employees have the right to quit a job at any time for any reason, with or without prior notice. Right to work refers to statutes enforced in states throughout the U.S. through Section 14b of the NLRA that prohibit unions from making union membership (i.e., payment of union dues) a condition of employment either before or after hire. Employment at Will is a principal implemented at the state level & interpretations vary among states. HR professionals should be aware of local regulations. Link to exception to the employment-at-will doctrine in Ohio © SHRM
of good faith and fair dealingExceptions to EAW Public policy Allows employees to fulfill legal obligations or exercise their rights (jury duty, whistleblowing). Implied contract Recognizes agreement implied from circumstances (employee handbook). Implied covenant of good faith and fair dealing Requires honesty in transactions (cannot fire an employee shortly before he or she is eligible for a pension). NOTES p. 21 Exceptions to EAW The EAW public policy exception derives from some court decisions that have held employees cannot be fired for fulfilling legal obligations or for exercising their legal rights. KEY POINT Violation of public policy is the most widely recognized exception to the at-will doctrine Implied contract – recognizes agreement implied from circumstances (employee handbook) Implied covenant of good faith & fair dealing – required honesty in transactions (cannot fire an employee shortly before he/she is eligible for a pension) Implications of EAW for employers Avoid representing the job as “permanent” Figure 2 EAW Exceptions p. 22 © SHRM
Common-Law Tort ClaimsTort law protects a person’s: Physical safety and well-being. Enjoyment of their property. Financial resources. Reputation. NOTES p. 23 A tort is a civil wrong – tort law deals with situations where a person’s behavior has unfairly caused harm. A tort may not be illegal but the law allows a person who has been harmed to recover their loss. Tort law serves to protect persons’ interest in their physical safety & well being, the possession & enjoyment of their property, their financial resources & the intangible resource of reputation. Some common-law tort claims that affect individual employer rights include : negligent hiring/retention, defamation, fraudulent misrepresentation, duty of loyalty, & invasion of privacy. Tort law protects a person’s: Physical safety and well-being. Enjoyment of their property. Financial resources. Reputation Tort claims arise when these rights are affected Tort claims arise when these rights are affected. © SHRM
Negligent Hiring/RetentionThe hiring of an employee who the employer knew (or should have known) posed a risk to others The retention of an employee who engages in misconduct that poses a threat to others during and after working hours NOTES p. 23 Negligent hiring can arise when, after being hired, an employee harms others when the employer knew - or should have known, based on a reasonable pre-hire investigation of the employee’s background – that the employee imposed a foreseeable risk to others in the workplace. Negligent retention can arise when an employer retains employees who the employer knew, or should have known, posed a threat to others both during & after working hours. KEY POINT To state a claim of negligence in hiring or retention, the following must ordinarily be shown: Employer-employee relationship or retention of an employee must exist Employee must be incompetent or inappropriate for the position Employer either knew or should have known of the incompetence or inappropriateness Employee’s act or omission must have caused the injuries With appropriate investigation, the employer could have discovered the relevant information & prevented the incident from occurring Claims can be prevented by conducting background and reference checks on applicants. © SHRM
Defamation Statement may be spoken (slander) or written (libel).Injuring someone’s reputation by making a false and malicious statement Statement may be spoken (slander) or written (libel). Statement must be shown to be: False and malicious. Harmful to employee’s reputation. Made without a legitimate business reason. NOTES p. 24 Defamation is injuring someone’s reputation in the community by making a false & malicious statement. It may be spoken (slander) or written (libel). KEY POINT In general, to prove defamation, a person must show evidence that: A false & malicious statement was made to another person. In the legal sense, “false” refers to making a statement known to be false or in some instances acting with reckless disregard to the statement’s truth or falsity. Harm to the person’s reputation was caused by the statement The statement was made with no legitimate associated business reason Example: A manager is jealous of a fellow employee who was recently promote & he spreads false rumors that the employee traded sexual favors for the promotion. © SHRM
An employer is usually protected against charges of defamation in a reference- checking situation if the employer A. shows remorse for harming the employee’s reputation. B. provides honest and accurate references about former employees. C. makes verbal comments but does not put them in writing. D. tries to verify the accuracy of information. NOTES p. 24 Answer: B Defamation claims may arise due to false, negative statements made about a former employee during reference checks. When giving references, it is also imperative that the references not be inaccurate. Instances of misleading, overly positive references by prior employers about former employees who exhibited dangerous behaviors have made some organizations liable for misrepresentation. 45 states have passed laws providing some immunity from tort liability to employers that give truthful references about a prior employees. These laws vary from state to state in terms of scope of protection & conditions that must be met for the protection to apply. © SHRM
Fraudulent MisrepresentationIntentional deception relied upon and resulting in injury to another person. May include claims regarding significant terms of a job offer. Can include silence, innuendoes, or gestures that are deceiving; need not be a positive statement. NOTES p. 24 Fraudulent Misrepresentation is intentional deception relied upon & resulting in injury to another person. Misrepresentation claims can be based on misstatement of material/significant facts about the terms of a job offer, including the type of position, salary, job requirements, and other matters directly relating to the offer It is important to note that an innocent representation may also be actionable when the party making the claim is under some obligation to ascertain the truth. It can also include silence, innuendos, or gestures that are deceiving; need not be a positive statement © SHRM
Other Common-Law Tort ClaimsEmployee’s duty of loyalty Employee must not degrade employer’s reputation, service, or products. Employee must not harm the employer’s business. Obligation ceases when employment relationship ends. Invasion of privacy Unreasonable intrusion into seclusion of another. Appropriation of a name or likeness. Publication that generates unreasonable or false publicity. NOTES p. 25 The common law imposes on employees a duty to be loyal to the employer Employee’s duty of loyalty Employee must not degrade employer’s reputation, service, or products. Employee must not harm the employer’s business. Obligation ceases when employment relationship ends Invasion of privacy Unreasonable intrusion into seclusion of another. Appropriation of a name or likeness. Publication that generates unreasonable or false publicity Figure 3 Common Law Tort Claims p. 26 © SHRM
Common-Law Contract IssuesAgreement between two or more persons to do or not do something in exchange for something of value. Contract law provides remedies if the contract is breached. Contracts can be written or oral. NOTES p. 26 Contract Issues Under Common Law a contract is generally defined as an agreement between 2 or more persons to do, or refrain from doing, a particular thing in exchange for something of value. Contract law provides remedies if a promise is breached or the promise is recognized as a duty. Contracts can be written or oral The doctrine of implied contract has already been discussed as an exception to employment-at-will. The following contract law doctrines also affect hiring and firing: Express oral contract Unfair competition & noncompete agreements Inevitable disclosure KEY POINT Contracts can be written, using formal or informal terms, or they can be entirely oral. The terms of the contract – the who, what, when, where, and how of the agreement – define the promises of each party. © SHRM
Agreements Enforced by LawExpress oral contract Unfair competition and noncompete agreements Inevitable disclosure Employee’s duty of loyalty and confidentiality NOTES p. 27 Express Oral Contract a contract need not be in writing to be enforceable. Accordingly, when an employer & employee exchange promises related to employment, they can create an express oral contract. If the existence of an express oral contract is proved by the employee, the employer cannot claim employment at will. Unfair competition & noncompete agreements for a noncompete agreement to be enforceable, the employer must have some type of agreement with the employee that gives them something of value & the agreement must be narrowly tailored to protect the employer’s legitimate business interests. Noncompete agreement must not restrain an employee entirely from earning a living. Most restrict a former employee with competing with the former employer and from using secret, confidential or proprietary information obtained by the employee during employment. A properly written & enforceable noncompete agreement will be as specific as possible & contain language that Limits the geographical area to which the agreement applies Limited the duration of time the agreement will be in effect Details the scope of the activity that is prohibited Inevitable Disclosure is another concept closely related to safeguarding trade secrets. Under this doctrine, an employer could prevent an employee from taking a new position because the employee had knowledge that would inevitably be disclosed. An employer may be able to establish the likelihood of inevitable disclosure as reason t enforce a noncompete agreement with an employee. This doctrine is applied prospectively, not retroactively & may vary from state to state. KEY POINT p. 29 The duty to maintain confidentiality about business matters continues even after the relationship ends & in the absence of a written contract between the employer & employee. It is always prudent to have written agreements/policies to ensure that employees are aware of these important obligations & know what information is confidential. Figure 4 Common Law Contract Law p. 29 © SHRM
The Litigation ProcessNotification Notify counsel promptly. Implement litigation hold. Warn against retaliatory actions. Answering complaint Be aware of time frame for response. Ensure attorney work product privilege. Scheduling conferences Ensure adequate preparation time. Discovery process Provide focused, relevant, objective testimony. Conduct safe, legal, effective investigations. Motion to dismiss Attorney decision and action Summary judgment Work with attorney for organization’s best interest. Pretrial and trial Support evidentiary motions. Provide relevant information to attorney. Schedule witnesses. NOTES p. 30 Litigation Process Notification Answering complaint Scheduling conferences Discovery process Motion to dismiss Summary judgment Pretrial & trial Figure 5 HR Involvement in an Employment Lawsuit p. 39 10 Progress Check Questions p. 40 © SHRM
Positive Characteristics of Union-Free OrganizationsClear position re unionization Fair, consistent treatment Access to opportunities Balanced promotion decisions Communication and feedback Problem-solving procedures Counseling Comparable compensation and benefits Performance appraisal Rewards and recognition Management/ supervisor training 5-2: Employee Relations & Organizational Culture p There are many reasons for creating a positive organizational culture, minimizing turnover, ensuring a more engaged workforce, and providing a competitive edge. In a non-organized workplace, there is an added incentive to decrease interest in employees seeking union representation. Union involvement increases not only labor costs but administrative time & costs. It also decreases employer’s flexibility in implementing certain strategically driven changes in workplace activities & organization. In addition to focus on comp & benefits systems & workforce planning & development, HR management must also champion employee relations at a strategic level. See list on p. 47 The above slide shows the characteristics of organizations that are union free p © SHRM
Feedback and Communication in Union-Free OrganizationsAttitude (climate) surveys HR/labor relations reviews Skip-level interviews Open-door meetings Department meetings Employee participation programs Electronic communications NOTES p. 51 Effective organizations use a variety of communication channels to relay information to employees, including newsletters, s & regular meetings. Keeping employees in the communications loop gives them a greater sense of control over their work lives & prevents problems created by the rumor mill & inaccurate, incomplete information. In terms of ensuring feedback, a unionized workplace will have defined mechanisms for providing feedback to management. In a nonunion environment, management must also have a formal process to gain direct info about employee views of organizational effectiveness as well as of specific policies & practices. Examples of feedback mechanisms: Attitude /climate surveys ask employees to provide opinions on fair treatment, recognition & appreciation, quality of supervision, working conditions, etc. Use of benchmark data from other organizations helps analyze survey results & focus on internal continuous improvement. Human resource/labor relations reviews, similar to accounting audits in both content & how they are conducted. Most models follow a checklist review of various functional areas of HR management. Skip-level interviews are an annual meeting with managers & each employee 2 levels below him/her. Facilitates upward communication where it may not routinely occur & encourages management to resolve issues & employee problems promptly. Open door/person-to-person meetings are almost always encourages in union free settings. Important to actively solicit feedback but to also respond to that feedback. Department meetings where employees meet regularly with management to discuss developments & seek areas for improvement are often used as a means of regular upward communication. Employee participation programs, such as employee councils, quality circles, etc. can create a loyal & committed workforce to substantially increase productivity & quality. Electronic communications can enhance bottom-to-top communications KEY POINT p. 53 Employee participation programs must be examined but there are a few general rules: Members of such programs must not represent other employees Programs must not be bilateral in nature/purpose meaning working to be engaged in making proposals to management or engaged in dealing with the employer Committee deliberations must avoid “traditional areas of bargaining” such as compensation, hours, benefits & reward systems If there is union representation, management must at the very least “meet & confer” with the union over the design & implementation of the committees © SHRM
Compensation and Benefits in a Union-Free EnvironmentHR ensures that employees are informed about: Compensation and salary data. Market comparisons. Salary grades. How raises are awarded. Cost of health care. NOTES p. 54 Compensation and Benefit Programs and Practices Nonunion organizations work hard to make sure they are not vulnerable to union organization on the basis of compensation & benefit programs & practices and should engage in regular & open communication regarding: General comp & salary data Salary grades, including how grades are established, progression between grades, etc. How raises are awarded Cost of health care & impact on the benefits package What employees think or perceive is as important as the facts. If the organization compares favorably with other firms, this should be communicated effectively & regularly. If comp & benefits is less than competitive, this should be communicated along with the reasons for the differences. Performance appraisals Rewards & recognition Management/supervisor training Figure 6 Guidelines for Effective Rewards/Recognition Programs p. 56 © SHRM
Labor-Management Cooperative StrategiesGreater acceptance of partnerships Willingness to share power Open and candid sharing of information Joint decision making on common issues Win-win bargaining Shared responsibility and accountability NOTES p. 57 Labor-Management Cooperative Strategies A more cooperative labor-management relationship is generally characterized by: Greater acceptance of partnerships Willingness to share power Open & candid sharing of information Joint decision making on common issues Win-win bargaining Shared responsibility & accountability Figure 7 Fundamentals of Labor-Management Cooperation p. 58 5 Progress Check Questions p. 60 © SHRM
Employee Involvement (EI)Also known as participative management or empowerment Links shared interests of the employee and the organization for mutual benefit. HR: Communicates company goals. Develops and maintains EI programs. Helps build trust in employees. Gives employees the freedom and responsibility to make job-related decisions. 5-3: Employee Involvement Strategies p Characteristics of Employee Involvement/Participative Management/Empowerment An organization’s strategic plan is usually advanced by creating an environment that promotes positive relations between employees & employers & seeks to balance the needs of employees with those of the organization Employee Involvement is a planned & orderly attempt to link the shared interests of employees & the organization for their mutual benefit Gives employees the freedom & responsibility to make job-related decisions It is a motivational technique to enhance the quality of decision making while satisfying employee need for job involvement For employee involvement & participative management to be effective: All participants must be open to examining new ideas Any union involved must be encouraged to buy into the process Process must include organizational commitment & support Design& implementation of the programs must not violate the NLRA Role of Human Resources in Employee Involvement Communicates company goals Develops & maintains employee involvement programs Helps build trust in employees Figure 8 Benefits Gained Through Employee Participation p. 65 © SHRM
EI Strategies: Job DesignEmployee efficiency Speci alizati on Stand ardiza tion Divisio n of labor Employee satisfaction Job enlargement Job rotation Job enrichment NOTES p. 66 Job Design is a critical factor in how well employees like their work. It is concerned with structuring jobs to improve organizational efficiency & employee satisfaction. Concept of Scientific Management developed by Frederick W. Taylor in an effort to achieve maximum productivity. He advocated designing jobs to get the greatest amount of work done in t he least amount of time. Although this lead to development of expertise & economic advantages, it sometimes decreased communication between departments, as well as employee boredom & low morale. KEY POINT p. 66 Division of labor – jobs were reduced to their smallest components because small components because small components could be completed quickly. One person was assigned to complete each small component. Unskilled workers could perform the simple tasks. Standardization – through study, the most efficient way to do a particular job was determined & then uniformly instituted. The company benefits from efficiency, reduced training time & costs, and reduced wages because of the simplicity of the job. Specialization – as people repeatedly performed the same task, they became more proficient. The increase in the number of large organizations encouraged specialization Elton Mayo’s Hawthorne Studies were conducted at Western Electric in Chicago and involved a group of 6 women who were segregated, then their work conditions were altered. The key outcome, known as the Hawthorne Effect was discovery that individual behaviors are altered when workers are involved & management shows interest in their work. © SHRM
The degree to which an employee completes an assignment with a tangible outcome is an example ofA. skill variety. B. task significance. C. task identity. D. autonomy. NOTES p. 68 Answer: C Experts maintain that an employee will be more motivated to work & satisfied with a job if the job design accounts for the following core characteristics (see details on p. 68) Skill variety Task identity Task significance Autonomy Feedback Collectively, these core job characteristics create conditions that allow employees to experience 3 critical psychological states related to beneficial work outcomes: Meaningfulness ,which is linked to skill variety, task identity, & task significance Responsibility ,which is linked to autonomy Knowledge of results, which is linked to feedback Job Redesign strategies – the personal & work outcomes expected from these linkages include high internal work motivation, high quality work performance, high satisfaction with work, & low turnover & absenteeism KEY POINT p. 69 (see entire Key Point on p. 69) Job enlargement attempts to relieve boredom & low morale associated with excessive job simplifications. It refers to broadening the scope of a job by expanding the # of different tasks to be performed-essentially, adding more similar operations to a job. Job rotation, a variation of job enlargement, breaks the monotony of routine jobs by shifting people between comparable but different jobs could be rotated on an hourly, daily, weekly basis. Also referred to horizontal integration. Job enrichment increases the depth of a job by adding responsibility for planning, organizing, controlling & evaluation. Also known as vertical integration. Examples of actions that increase job depth include giving employees more authority, direct sharing of feedback & expanding assignments. May improve employee morale but may not lead to increased productivity. © SHRM
EI Strategies: Alternate Work SchedulesTele- commuting Phased retirement Job sharing Regular part-time Compressed workweeks Flextime Schedules NOTES p. 70 Alternative Work Schedules Flextime Compressed work weeks Regular part-time Job sharing Phased retirement Telecommuting KEY POINT p. 72 Often, part-timers are not offered the full range of benefits offered to full-time employees. According to the IRS, however, if part-time employees work at least 1,000 hours, employers are legally required to include them in most retirement plans. Figure 9 Advantages & Disadvantages of Flextime p. 71 Figure 10 Tips for Implementing Successful Telecommuting Program p. 74 Figure 11 Flexible Work Arrangements p. 75 © SHRM
EI Strategies: Workplace TeamsTask forces Self-directed Project Committees Teams Teams are accountable for specific objectives and performance goals. Teams and job design combine to increase productivity and job satisfaction. NOTES p. 75 Workplace Teams are accountable for specific objectives & performance goals. Teams & job design combine to increase productivity & job satisfaction. Committees Project teams Self-directed teams Task forces Work teams KEY POINT p. 77 The NLRB has created 4 “safe harbors” for employers using employee participation programs. As noted earlier in this module, a safe harbor is a provision in a law or regulation that provides some measure of protection from liability if certain conditions are met. The NLRB has ruled that a committee is not considered a labor organization if it involves: Performance of a management function – if a committee has ability to make decisions, such as implementing company polices on overtime or paid leave), the committee is seen as operating as another layer of management. Even if the committee’s decision is not final, the safe harbor may still apply if the act of overturning the committee is similar to overruling a lower-level manager/supervisor’s decision. Brainstorming exception applies to programs formed to present management a broad range of ideas, i.e. non-selective brainstorming. Safe harbor will not cover a committee if members work together to reach consensus about a proposal’s merit & select proposals for presentation to mgmt. A suggestion box, committee should not prioritize various suggestions received because could result in a finding that the committee is “dealing” with the employer. Operational jurisdiction, a committee can make proposals related to operational issues like safety & quality, but not to terms or conditions of employement. © SHRM
Which one of the following actions would not be allowed under the NLRB’s “safe harbors” for EPPs?A. A committee includes both managers and employees. B. A committee forwards best employee suggestions to management. C. A committee proposes changes to improve production quality. D. A committee performs a management function. NOTES p. 77 Answer: B KEY POINT p. 78 To minimize the risk of violating the NLRA through the use of EPPs, employers should follow these guidelines: Do not establish committees in response to union organizing activity Do not allow employees to select representatives. Members should be appointed by employers, & membership should be rotated. Do not define EPP’s purpose as soliciting & representing the opinions of other employees. Committee members should speak for themselves only. Do not allow EPP members to represent employees in any matter with management, such as a dispute resolution process. Do not confer voting or approval authority to managerial or supervisory members. This may not be perceived as both “dominance” and “dealing.” Do not allow EPPs to present any proposals to management that are based on polls, votes, or consensus. Figure 12 Guidelines for Success of Self-Directed Work Teams p. 80 Figure 13 Common Types of Teams p. 82 Figure 14 Successful Employee Suggestion Systems p. 84 6 Progress Check Questions © SHRM
Employee Surveys Attitude Surveys Opinion Surveys Measure jobsatisfaction Opinion Surveys Measure data on specific issues Value of surveys is in measuring improvements over regular time periods. Employees should be guaranteed anonymity and given feedback on results. 5-4: Measuring Employee Attitudes p An employee survey is an instrument used to assess employee perceptions about the work environment, providing formal documentation on important organizational issues. It has been estimated that 70% of organizations survey their employees either annually or biannually. Employee surveys are sometimes broken into 2 categories: Attitude surveys tend to focus on level of job satisfaction Opinion surveys tend to measure important data on specific issues Survey benefits – provide direct means of assessing attitudes that would otherwise be unreported, improve employee relations by signaling that employee views are important, increase level of employee trust (if results are acted upon), improve customer satisfaction, detect early warning signs of problems/sources of conflict Survey topics – see list on p. 91 Survey design – surveys can be purchased or designed. Purchased surveys can save time & allow comparisons to other organizations. Opinion surveys, by their nature, are almost always internal. Can be advantage to measure attitude improvements over regular time periods. Online survey methods – see chart on p. 92 Special considerations – for surveys to be beneficial, employees should be aware of the survey purpose, should be guaranteed anonymity, & provided feedback on results. Survey analysis – results should be analyzed & findings promptly communicated to management & employees. Employers may be compelled to produce survey responses/results in litigation. Figure 15 Advantages & Disadvantages of Employee Surveys Online p. 92 © SHRM
Employee Focus Groups Small group participating in a structured discussion with a facilitator. Provide qualitative data on specific issues. Can be used in conjunction with or independent of a survey. Provide in-depth feedback on specific issues. NOTES p. 94 A focus group is a small group (normally 6-12) invited to actively participate in a structured discussion with a facilitator. They typically last 1 to 3 hours, depending on the topic & purpose. They can vary immensely in purpose & are often used as a follow-up to a survey. Can also be used independently of any survey to check how employees feel about a specific issues/programs. Purpose is to solicit information & opinions only, not for dealing with management issues. Special considerations – importance of planning, facilitator, participant selection, importance of note-taking (p. 95) Advantages & disadvantages of focus groups – see chart on p. 96 Advantages Flexible format Faster & less costly than surveys Allow for group brainstorming, decision making, & prioritization Can provide group consensus Enable HR to learn employee needs, attitudes, & opinions in a direct format Give employees direct input Disadvantages Tend to foster “group think” May be difficult to control Generally don’t allow for deep discussions Can provide skewed/biased results Pose risk of violating NLRA prohibition against employers interfering with, dominating, or contributing t o the support of a labor organization Figure 16 Advantages & Disadvantages of Employee Focus Groups p. 96 © SHRM
Common Errors in Interpreting Data“Rush to conclusions” Manipulated results Graphical misrepresentation Errors NOTES p. 96 Common Errors in Interpreting Data Rush to conclusions – easy to draw preliminary conclusions from incomplete data & then continue to select subsequent data that supports these conclusions. As analysis draws to a close, less attention may be given to factors that if explored further might be significant. Try to refrain from drawing conclusions early in analysis. Graphical misrepresentation – errors are often made in visually representing data. Check graphs, charts, etc. for accuracy. Redo calculations used to condense data. Analysis errors – ensure that all statistical tests were performed correctly. In the case of attitude surveys that are done at regular intervals, it is best to replicate the original procedures. Analysis paralysis – over analysis can focus on issues that have little significance to the overall study. Manipulated results – the results should be based on actual & not manipulated results Ways to improve employee assessment Surveys & focus groups can seem deceptively easy to develop & administer, but they must be effectively designed & appropriately implemented in order to ensure meaningful results Figure 17 Ways to Improve Employee Assessment Instruments p. 99 2 Progress Check Questions “Analysis paralysis” Analysis errors © SHRM
Policies, Procedures, and Work RulesPolicy Broad statement that reflects philosophy, objectives, or standards; general in nature. Procedure Detailed, step-by-step descriptions; specify what, when, where, and who. Work rule Reflects management decisions regarding specific actions to be taken or avoided in a given situation. 5-5: Policies, Procedures, & Work Rules p Policy - broad statement that reflects philosophy, objectives, or standards; general in nature Intended to help management & employees make intelligent decisions consistent with policies. Meaning of policies is not standardized, for example large organizations may have employee manuals with documented policies while the policies guiding conduct in smaller organizations may be transmitted through observations or word of mouth. Policies that the organization does not intend to adhere to should not be published in writing. Policies, written or unwritten are not permanent & HR needs to periodically review polices & revise those that are obsolete. Procedures - detailed, step-by-step descriptions; specify what, when, where, and who Work Rule - reflects management decisions regarding specific actions to be taken or avoided in a given situation HR responsibilities in coordinating policies, procedures & work rules see list on p. 106 Supports development of policies by organization leaders Facilitates development of procedures by other departments Support communication of policies, procedures, & work rules throughout the organization Figure 18 Examples of Policies, Procedures & Work Rules p. 106 Figure 19 HR Coordination of Policies, Procedures & Work Rules p. 107 © SHRM
Guidelines for Employee HandbooksBe aware of tone, style, and look. Align handbook with organization’s culture and values. Keep it simple and current. Distinguish between organizational policies and job specifics. Accommodate multilingual requirements. Obtain written evidence of receipt. Be aware of legal obligations and implications. For example, improperly drafted handbooks can create an employment-at-will exception. NOTES p. 107 Employee Handbooks Be aware of tone, style, and look. Align handbook with organization’s culture and values. Keep it simple and current. Distinguish between organizational policies and job specifics. Accommodate multilingual requirements. Obtain written evidence of receipt. Be aware of legal obligations and implications KEY POINT p. 110 Courts throughout the country have repeatedly ruled that, while an employee handbook can satisfy many legal requirements, it can also, depending on the circumstances: Create an employment contract that creates an exception to employment-at-will doctrine & limits employer’s ability to change terms of employment or terminate an employee Support claims of discriminatory treatment through inconsistently applied policies Violate employees Section 7 rights & constitute a Section 8 violation KEY POINT p. 112 It is also recommended that employers avoid giving copy of handbooks to prospective employees to review as background information about the job & company. While not always feasible, this can help minimize any claim that the handbook is an employment contract & a legal defense that the employee accepted employment based on the information. Figure 20 Sample Employee Handbook Information p. 109 Figure 21 Recommendations for an Employee Handbook p. 113 4 Progress Check Questions p. 114 © SHRM
Behavior Issues Absenteeism: Tardiness:Time lost when employees do not come to work as scheduled Tardiness: Time lost when employees report to work late When taking disciplinary action for excessive absenteeism or tardiness, do not count absences protected by USERRA, FMLA, or state law. 5-6: Discipline & Compliant Resolution p Benefits of Effective Discipline Practices - although supervisors/managers often find it difficult to provide feedback to employees with performance issues, properly administered discipline can be an effective performance improvement tool Behavior Issues – the value of effective discipline program can be illustrated through problem of absenteeism & tardiness. Effective supervisory efforts in attendance management will affect a relatively small % of employees but will generate substantial savings, increased productivity & morale. KEY POINT p. 120 Note that in taking disciplinary action for excessive absenteeism and/or tardiness, employers must be careful not to count absences protected by federal, state, or local law. This would include for example, absences: Covered by USERRA for military leave Covered by FMLA For medical, family, school or voting leave covered by some state laws Absence Formula Worker days lost in month through absence __________ Average # of employees x Number of workdays per month Figure 22 Cost of Absenteeism p. 120 © SHRM
Due Process Tests for DisciplineIs the employee informed of rules and the consequences of not following them? Is discipline administered consistently and predictably? Is the decision to discipline based on facts? Is the employee allowed to ask questions and offer a defense? Does the employee have an avenue for appeal? Is the discipline system structured progressively? Are special circumstances considered? NOTES p Disciplinary Action – 7 basic tests administrative courts often use in wrongful termination/discipline cases Is the employee informed of rules and the consequences of not following them? Is discipline administered consistently and predictably? Is the decision to discipline based on facts? Is the employee allowed to ask questions and offer a defense? Does the employee have an avenue for appeal? Is the discipline system structured progressively? Are special circumstances considered? Figure 23 Tests of Due Process p. 121 © SHRM
Measures to Avoid Disciplinary ActionSet clear expectations with detailed job descriptions. Establish written policies, procedures, and work rules. Establish a climate of communication. Maintain an open-door policy. NOTES p. 124 Preventive Measures to Avoid Disciplinary Action Set clear expectations with detailed job descriptions Establish written policies, procedures, and work rules Establish a climate of communication Maintain an open-door policy © SHRM
Progressive DisciplineDocument all steps—even the oral steps. 5. Discharge 4. Final written warning 3. Second warning NOTES p. 125 The concept of a progressive discipline system is simple. It employs a # of corrective steps that lead to termination if the conduct continues. Both punitive & nonpunitive systems can be progressive. Each step initiates a window of time & if the employee commits another work rule violation within that window, the discipline process moves to the next step. Details of the system can vary The number of steps before termination The length of the time window for each step in the process The nature of the second offense Typical sequence of progressive disciplinary action in a nonunion environment is as follows: Problem-solving session & open dialog Warning Second warning Final written warning Discharge 2. Warning 1. Problem solving and open dialog © SHRM
An employee is accused of a violation of a dischargeable work ruleAn employee is accused of a violation of a dischargeable work rule. The HR manager should A. confront the employee and have an open dialog. B. give an oral warning. C. place the employee on administrative leave and conduct an investigation. D. terminate on the spot. NOTES p Answer: C Disciplinary terminations should be handled with caution & care. SHRM’s legal report “Cardinal Rules of Termination” reviews 10 fundamental rules Never summarily discharge Get all the facts first to make sure your investigation is thorough Conduct all employee interviews with care and deliberation Investigate promptly, don’t delay Always conduct a “final filter” review Pinpoint the basis of the discharge Whenever possible, inform the employee in person of decision to terminate & reason behind it Always follow discipline procedures & keep appropriate documentation Terminate when appropriate Watch for red flags & involve legal counsel HR Review of Disciplinary Actions – it is good business practice for an employer to do the following Produce persuasive evidence of employee’s culpability/negligence Give employee fair opportunity to present his/her side of the story In a punitive system, determine penalty appropriate for the offense In a punitive system, impose discipline that is consistent with the treatment others have received for similar infractions Incorporate HR review of all material/serious disciplinary actions HR personnel should review all disciplinary actions before they are implemented Disciplinary actions are reviewed for consistency Case is reviewed for any potential EEO violations & potential exceptions to employment-at-will & potential tort or other liability, as well as compliance with the union contract Action complies with federal, state & local legislation Action is appropriate in view of previous disciplinary action © SHRM
ADR Options Open-door policyEmployees are encouraged to bring grievance to immediate supervisor/manager. Ombudsperson Third party, inside or outside organization, investigates and mediates disputes. Usually not empowered to settle grievances, but will forward dispute to further ADR processes. Single designated officer Management designates individual to receive and investigate complaints and resolve disputes. Chosen officer Employee chooses arbitrator from a group of individuals. Peer review Panel of employees or employees/managers hears and resolves complaint. May recommend policy changes. Often limited to suspensions and discharges. Mediation Mediator facilitates discussions with disputants to negotiate mutually acceptable solution. Arbitration Arbitrator hears both sides and renders a decision. May be binding or nonbinding. NOTES p. 130 Alternative Dispute Resolution is an umbrella term describing a number of problem solving & grievance resolution approaches & generally refers to any means of settling disputes outside the courtroom. ADR techniques have gained wide recognition in both union & nonunion environments. ADR is different from more traditional, usually conflict-oriented approaches to resolving disputes & grievances . It is often cost efficient because it reduces legal expenses involved in handling employee relations charges & antagonistic lawsuits. ADR options Open-door policy - employees are encouraged to bring grievance to immediate supervisor/manager Ombuds person - third party, inside or outside organization, investigates and mediates disputes. Usually not empowered to settle grievances, but will forward dispute to further ADR processes Single designated officer - management designates individual to receive and investigate complaints and resolve disputes Chosen officer - employee chooses arbitrator from a group of individuals Peer review - panel of employees or employees/managers hears and resolves complaint. May recommend policy changes. Often limited to suspensions and discharges Mediation - mediator facilitates discussions with disputants to negotiate mutually acceptable solution Arbitration - arbitrator hears both sides and renders a decision. May be binding or nonbinding Figure 24 ADR Options p 6 Progress Check Questions p. 136 © SHRM
Sherman Anti-Trust and Clayton ActsSherman Anti-Trust Act, 1890 Primarily directed at monopolistic employers. Resulted in injunctions issued against union activities. Clayton Act, 1914 Clarified and supplemented the Sherman Anti-Trust Act. Minimally restricted injunctions against labor. Legalized peaceful strikes, picketing, and boycotts. 5-7: Labor Relations Legislation & Union Organizing p See list of key legislation on p. 140 Sherman Anti-Trust Act, 1890 Primarily directed at monopolistic employers Resulted in injunctions issued against union activities Clayton Act, 1914 Clarified and supplemented the Sherman Anti-Trust Act Minimally restricted injunctions against labor Legalized peaceful strikes, picketing, and boycotts KEY POINT p. 141 The Clayton Act stated that “the labor of a human being is not a commodity or article of commerce” and hence not a violation of the Sherman Anti-trust provisions that had been the legal basis for injunctions against union organization. The act minimally restricted the use of the injunction against labor & legalized peaceful strikes, picketing, & boycotts. © SHRM
Railway Labor Act, 1926 Passed to reduce labor conflict and the possibility of transportation strikes. Gave railroad employees the “right to organize and bargain collectively through representatives of their own choosing.” Covers both railroad and airline employees today. NOTES p. 141 Railway Labor Act, 1926 Passed to reduce labor conflict and the possibility of transportation strikes. Gave railroad employees the “right to organize and bargain collectively through representatives of their own choosing.” Covers both railroad and airline employees today KEY POINT p. 141 The Railway Labor Act is significant because it represented a complete change in the government’s approach to unions. It provided railway employees the “right to organize and bargain collectively through representatives of their own choosing.” it provided unions with the base for the development of collective bargaining. The act seeks to substitute bargaining, arbitration, and mediation for strikes as a means of resolving labor disputes. © SHRM
Norris-LaGuardia Act, 1932 NOTES p. 142Restricted federal judicial intervention in labor disputes. Guaranteed the workers’ right to organize. Eliminated arbitrary injunctions against peaceful organized labor activity. Made yellow-dog contracts unenforceable. NOTES p. 142 The Norris-LaGuardia Act of 1932 was intended to clear confusion in the courts once & for all. Restricted federal judicial intervention in labor disputes Guaranteed the workers’ right to organize Eliminated arbitrary injunctions against peaceful organized labor activity Made yellow-dog contracts unenforceable – these agreement between an employer and an employee in which the employee agrees, as a condition of employment, not to be a member of a labor union. In the United States, such contracts were, until the 1930s, widely used by employers to prevent the formation of unions, most often by permitting employers to take legal action against union organizers. In 1932, yellow-dog contracts were outlawed in the United States under the Norris-LaGuardia Act. National Industrial Recovery Act extended the policies of the Railway Labor Act to all interstate commerce organizations & set up election machinery permitting employees to select collective bargaining representatives. It guaranteed employees the “right to organize and bargain collectively.” Although struck down by Supreme Court in 1935 (for reasons unrelated to its protection of labor), this act served as a catalyst for industrial unionism as the government officially recognized workers rights to unionize & bargain w/employers. Shortly thereafter, was replaced by the NLRA. KEY POINT The basic provisions of the Norris-LaGuardia Act limited the power of employers in two ways Federal courts were not allowed to issue injunctions against peaceful organized labor activity, such as strikes, picketing, & boycotts. In the past, federal courts had at times issued arbitrary injunctions at the request of employers. Yellow-dog contracts, which force employees to agree not to join a union or participate in union activity as a condition of employment, were not enforceable in federal courts. Yellow-dog contracts were subsequently made implicitly illegal by the NLRA as a violation of an employee’s Section 7 rights. (defines protected activity). © SHRM
National Labor Relations Act (Wagner Act or NLRA)Allows workers to organize themselves and bargain collectively. Prohibits employer unfair labor practices. Exempts managers, supervisors, agricultural workers, domestic employees, and family workers. Established the NLRB, which can: Conduct secret-ballot elections. Remedy ULPs. NOTES p. 143 National Labor Relations Act (Wagner Act or NLRA) was passed to protect & encourage the growth of the union movement. Allows workers to organize themselves & bargain collectively Prohibits employer unfair labor practices Exempts managers, supervisors, agricultural workers, domestic employees, & family workers Established the NLRB which can Conduct secret ballot elections Remedy ULP’s Section 8 prohibited employer conduct, defined as unfair labor practices, that would interfere with those rights such as Employer domination of unions Discrimination in terms of employment to discourage union membership Refusing to bargain in good faith Established the NLRB to act as a quasi-judicial agency KEY POINT p. 144 Although a major portion of the private sector was covered, the act did not apply to all employers & employees. Federal, state & local governments, employees subject to the Railway Labor Act & labor organizations were exempted from the law. Employee groups specifically exempted were supervisors, agricultural workers, domestic employees, & family workers. By later decisions of the NLRB, and confirmed by the courts, managers were added to the exempt list. In the 1970s, the act was expanded to include employees of the US Postal Service, private health care facilities, colleges & universities, and law firms, among others. © SHRM
Labor-Management Relations Act, 1947 (Taft-Hartley Act or LMRA)Balanced union and management rights. Guaranteed employers their right to free speech. Outlawed sweetheart contracts. Mandated that unions represent all employees in the bargaining unit. Allowed unfair labor practice charges to be filed against unions. NOTES p. 145 Labor-Management Relations Act/Taft-Hartley Act, 1947 was technically an amendment to the National Labor Relations Act which established a balance of power between union & management by designating certain union activities as unfair labor practices. Balanced union and management rights Guaranteed employers their right to free speech Outlawed sweetheart contracts - a contract made through collusion between management and labor representatives which contains terms beneficial to management and unfavorable to union workers Mandated that unions represent all employees in the bargaining unit Allowed unfair labor practice charges to be filed against unions © SHRM
Labor-Management Relations Act (Taft-Hartley Act or LMRA)Prohibited the deduction of union dues without written consent. Outlawed the closed shop. Permitted states to adopt right-to-work legislation. Established provisions for national emergency strikes (80-day cooling-off period). Established the Federal Mediation and Conciliation Service. NOTES p. 145 Labor-Management Relations Act (Taft-Hartley Act or LMRA) Prohibited the deduction of union dues without written consent Outlawed the closed shop – required employees to be union members in order to be employed. Permitted states to adopt right-to-work legislation Established provisions for national emergency strikes (80-day cooling-off period) Established the Federal Mediation and Conciliation Service to offer assistance in contract settlement & to maintain a list of arbitrators to help interpret contract language & resolve disputes. KEY POINT p. 145 (entire page) Summarizes the results of amendments enacted in the Taft-Hartley Act (9 bullets). © SHRM
Labor-Management Reporting and Disclosure Act, 1959 (Landrum-Griffin Act or LMRDA)Provides a bill of rights for union members. Permits closed shop exception for construction industry. Prohibits discrimination against nonunion members. Protects employees from corrupt or discriminatory unions. NOTES p. 146 Labor-Management Reporting and Disclosure Act, 1959 (Landrum-Griffin Act or LMRDA) Provides a bill of rights for union members Permits closed shop exception for construction industry Prohibits discrimination against nonunion members Protects employees from corrupt or discriminatory unions KEY POINT p. 146 The LMRDA contained the following: A bill of rights for union members, including the right to secret ballots for internal union elections, protection from arbitrary or excessive dues assessment, freedom of speech in union matters, & right to sue the union. A closed shop exception for the construction industry because of the relative strength of regional unions in comparison to individual employers. Most hiring in the construction industry is done through union halls. A law stating that unions must agree not to discriminate on the basis of union membership. Rather, they must use objective criteria such as training & experience when making hiring decisions. A reporting requirement that obligates union officers to report certain financial information. © SHRM
A. Norris-LaGuardia Act B. National Industrial Recovery Act Which of the following restores the balance of power by making union unfair labor practices unlawful? A. Norris-LaGuardia Act B. National Industrial Recovery Act C. National Labor Relations Act D. Labor-Management Relations Act NOTES p. 147 Answer: D Figure 25 Major Employee & Labor Relations Legislation p. 147 © SHRM
Road to Unionization NOTES p. 148A union is a formal labor organization that has the right to represent & bargain for a group of employees. The union’s primary goal is to gain official recognition from the employer of those employees. Recognition means than an employer recognizes the union as being entitled to conduct collective bargaining on behalf of the workers in a particular bargaining unit. Management has a statutory duty to bargain with the union holding such exclusive recognition. In general, the road to unionization follows the process described in the above chart, although there are alternative routes. Union organization frequently starts when employees become disenchanted with management & seek outside assistance from a labor organization. In recent years, unions have initiated campaigns, targeting specific employers for unionization. KEY POINT p. 148 Note also that this section deals only with union organizing under the NLRA, which does not apply to employees of railroads or airlines. It also does not apply to employers with less than $50,000 in interstate commerce and to public employees. These groups are affected by their own state laws. Figure 26 The Union Organizing Process p. 148 © SHRM
Signs of Organizing CampaignsEmployers should activate rapid response teams as soon as early signs are detected: Changes in turnover Unlikely job candidates Changes in number of complaints or complainants Change in tone of communication New patterns of socializing among employees NOTES p. 149 Union Organizing Campaigns - employers shouldn’t wait to receive a petition for certification. If there are discarded union leaflets or authorization cards around & outside the workplace, the employer’s options may already be limited & should be alert to signs such as the following: Turnover changes significantly, either up or down. Feedback from exit interviews indicates dissatisfaction with workplace conditions. Unlikely candidates apply for openings The # of employee complaints changes significantly, either up or down. Complaints may be made by groups of employees. The tone & amount of communication changes. Comments at meetings may be more argumentative, employees may begin using organizing terminology, such as “protected activity”. Employees may ask more questions about policies & work rules. Employees may stop communicating directly with supervisors. Articles about union activity, cartoons/jokes critical of management may appear on bulletin boards. Patterns of socializing among employees may change, employees from different work areas that previously did not interact may visit each other’s work areas. The organization should be prepared to respond to these kinds of signals, supervisors should have been trained and a strategy should be in place. A rapid response team should be ready to implement communication & action plans Given the NLRB positions on “nip in the bud” actions & proposed “enhanced remedies” for employer infractions, HR must be wary of any action that could be construed as discouraging employee rights to organize. © SHRM
Setting Union StrategyUnion assesses feasibility, costs, and benefits of organizing. Union considers whether to use targeted campaign, corporate campaign. Tactics are weighed: inside organizing, salting, leafleting, meetings, home visits, telephone organizing, Internet campaigns, indirect pressure, picketing NOTES p. 150 Setting Union Strategy Union assesses feasibility, costs, and benefits of organizing. Union considers whether to use targeted campaign, corporate campaign. Tactics are weighed: inside organizing, salting, leafleting, meetings, home visits, telephone organizing, Internet campaigns, indirect pressure, picketing Union-organizing tactics p. 151 Inside Organizing p. 151 KEY POINT p. 152 Rules on solicitation must apply to all causes or organizations (not just unions) & must be enforced consistently (i.e. not in a manner that discriminates against union organizing). Further, even if properly worded & applied consistently, rules implemented in the face of union organizing have been found to be per se illegal as having a discriminatory objective. Prohibiting off-duty employees from being on the property but outside of buildings is illegal & in the absence of a written policy, prohibiting off duty employees from being in non-work areas of the business location is illegal. One current exception to the restrictions on solicitation & distribution allows limited personal & charitable solicitations on the employer’s premises. The exception is currently under review. © SHRM
Salting Process of using paid union organizers to infiltrate an organization and organize its workers. An adverse employment action against a salt usually results in the filing of a ULP charge against the employer. Recent NLRB rulings state: Applicant must be genuinely interested in employment to be protected against hiring discrimination based on union activity (2007). Union must provide evidence to support payment of back pay (2007). Individuals have protected right to be salts (2010). NOTES p. 152 Salting is the process of using paid union organizers to infiltrate an organization and organize its workers. An adverse employment action against a salt usually results in the filing of a ULP charge against the employer. Recent NLRB rulings state: Applicant must be genuinely interested in employment to be protected against hiring discrimination based on union activity (2007). Union must provide evidence to support payment of back pay (2007). Individuals have protected right to be salts (2010) NLRB decisions are related to salting p. 153 Toering Electric Company Oil Capitol Sheet Metal, Inc. KenMor Electric Company, Inc. KEY POINT p. 155 Management would normally decline any request to provide time for organizing meetings on site. Certain exceptions may exist, such as at a remote logging site here employees not only work but live in company provided facilities. And if an employer allows other groups to use its meeting facilities, it may also have to provide space for the union. Leafleting Meetings Home visits Telephone organizing Internet campaigns Indirect pressure © SHRM
Picketing Organ izati ona l Pic keti ng Infor mat ion al Pic keti ngInduce s employ ees to accept the union as their repres entativ e. Recognitional Picketing Obtains employer’s recognition of the union. Infor mat ion al Pic keti ng Informs the public that the employer is nonunion. Bannering Displays messages outside targeted employer’s premises. NOTES p. 156 There are several types of picketing: Organizational Picketing - induces employees to accept the union as their representative Recognitional Picketing - obtains employer’s recognition of the union Informational Picketing - informs the public that the employer is nonunion Bannering - displays messages outside targeted employer’s premises KEY POINT p. 156 The Labor Management Relations Act identifies certain instances when these types of picketing are prohibited-for example, when another union has already been recognized or a valid election has occurred in the previous 12 months. While theoretically there is a difference between organizational & recognitional picketing, in practice they are treated the same & are subject to the same restrictions. The organization must know the restrictions imposed upon these types of picketing & be able to recognize when unfair labor practices have been committed. © SHRM
Management Rights in a CampaignManagement has the right to: Take the initiative. State an opinion. Use line supervisors as resource. Safeguard employee names and addresses. NOTES p. 157 Management rights in a campaign – organizations that are successful in remaining union-free are diligent in communicating their positions & asserting their rights. Generally, these organizations do the following: Take the initiative – management has the right to speak out & if done effectively at this point, may blunt the organizing effort. This includes clearly expressing to employees why the org wants to remain union-free . State an opinion – section 8c of the NLRA addresses the legal right of employers to express their counterarguments in a union-organizing campaign. Point out that a strike is the union chief’s economic lever & that possible strike may entail certain consequences Communicate through supervisors & group meetings Hire consultants/campaign advisors to help defeat organizing attempts State that improvements are not dependent on unionization Point out that the union is an outsider & that financial costs of union outweigh its gains Use line supervisors as a resource – employees who trust & respect their supervisors usually feel the same way about the organization & conversely, if they dislike their supervisor, they typically dislike the organization. Quality of supervision often determines whether a union can prevail in an organizing campaign. Safeguard employee name & addresses – management can take steps to ensure the union does not have access to employee addresses. They may also emphasize to employees that there is no legal requirement for them to open their homes to such visitors. However, after the NLRB directs that there be an election or approves an election agreement, the law does require an employer to supply the union with employee addresses to the union. © SHRM
Neutrality/Cooperation AgreementAgreement between a union and an employer under which the employer agrees to remain neutral to a union’s attempt to organize its workforce. Common provisions include: Gag rule. No secret-ballot election. Union access to employer premises. Union access to personal employee information. Employee attendance at “captive audience” speeches. NOTES p. 158 Neutrality/Cooperation Agreements – sometimes management will waive its rights by signing a neutrality agreement – an agreement between a union and an employer under which the employer agrees to remain neutral to (not oppose) a union’s attempt to organize its workforce. These agreements vary but often contain the following provisions: Gag rule – imposes gag order on speech not favorable to the union. Employees are allowed to hear only what the union wants them to hear. No secret-ballot election – employer pledges to recognize the union automatically if a majority of employees sign union authorization cards. This is often referred to as a “card check” agreement. Access to premises – allows the union to come onto the org’s property to talk to employees & have union authorization cards signed. Access to personal information – may require that the organization provide personal info about employees to the union, such as names, addresses, phone #s. Captive audience speeches – may require employees attend “captive audience” speeches regarding union membership on the employer’s work site but not on paid work time. Paying employees for such a union meeting at the workplace could be considered support by the organization of a union, an unfair labor practice under Section 8a2 of the NLRA related to employer domination of unions. Management may be motivated to participate in neutrality/cooperation agreement for a number of reasons see list on p. 159 © SHRM
Authorization Cards The NLRB requires at least 30% of eligible employees to sign authorization cards/ petitions before ordering an election. The union typically wants 50% of eligible employees to sign cards before the union petitions for an election. With more than a majority of employee signatures, the union may also demand voluntary certification by card check. NOTES p. 159 During the next step of an organizing drive, union representatives generally seek employee interest by having employees sign authorization cards (or authorization petitions which allow multiple signatures on one form) to indicate they want union representation. KEY POINT At least 30% of the eligible employees in a prospective bargaining unit must sign authorization cards before the NLRB will order an election. A union, however, will customarily not petition for an election unless more than one-half of eligible employees sign cards/petitions in order to increase their chance for a successful vote & to preserve the ability to argue that it has the support of a majority in the event the NLRB rules that a fair election cannot be conducted. If the union has authorization cards signed by more than a majority of the bargaining unit employees, it can also request (or demand) voluntary recognition by card check. KEY POINT p. 160 If an election occurs & the union loses, the union can seek to overturn the election, arguing that the employer has engaged in actions that made the conduct of a fair election impossible (e.g., the CEO announces that a facility will be shut down if the union wins the election). If the union’s argument is successful, the union could then use the cards/petitions as an indication that it has the support of a majority of employees & win certification. Employers should be prepared to correct misrepresentations made on authorization cards/petitions and before cards even appear, educate employees about what these documents mean Signing card allows the union to represent their interests in negotiations re: wages, etc. Once card signed, impossible to revoke as evidence of support for a petition for cert by a union There are no rules about what an organizer can or cannot say/promise to persuade employee to sign a card/petition Employees do not have to sign the card when it’s presented to them. Figure 27 Sample Authorization Card p. 160 © SHRM
Petition for CertificationPetition for certification generally leads to an election supervised by the NLRB. Consent election Employer and union waive the preelection hearing. Directed election Ordered by the NLRB when parties cannot consent to an election and after a preelection hearing on unresolved issues. NOTES p. 161 The next step in the unionization process is the petition for certification of representation (referred to as an “R” petition NLRB filing – a petition that is filed by an employee/representative must be accompanied by supporting evidence that shows that substantial interest exists for forming a union. Authorization cards are the primary example of supporting evidence. Petition for certification generally leads to an election supervised by the NLRB Consent election - employer and union waive the preelection hearing Directed election - ordered by the NLRB when parties cannot consent to an election and after a preelection hearing on unresolved issues © SHRM
Representation HearingNLRB determines if: The petition satisfies the requirements. All petitioners are eligible to join a union. The proposed bargaining unit is appropriate. NLRB sets: Time, date, and place of the election. NOTES p. 162 The next step in the organizing process, the representation hearing is a decision point. The organizing campaign can proceed to an election., the union can be denied and abandon its attempt to organize the workplace, or the union can be denied an election & pursue another strategy toward certification. The regional office of NLRB must hold a hearing within 12 days of the date the petition is filed. NLRB determines if The petition satisfies the requirements All petitioners are eligible to join a union The proposed bargaining unit is appropriate NLRB sets time, date & place of election KEY POINT p. 164 Whether or not particular employees fit into supervisory categories and are excluded is based upon their job duties/responsibilities. This is a matter that can be resolved in the hearing process or by agreement. The regional office of the labor board will often decline to decide supervisory status prior to that election, choosing instead to permit the disputed individuals to vote subject to challenge by either side. Challenges will be resolved only if the challenged ballots are enough to affect the outcome of election. To manage risk, employers should clarify supervisory status of individuals before union organizing occurs. If there are employees not designated as supervisors but are treated as such, & this is discovered during the challenge, the employer would have committed an unfair labor practice. Determination of Bargaining Units – a union typically proposes a bargaining unit – the group of employees that will be represented by the union. The NLRB must determine if the proposed unit is appropriate in the given situation. The board will require only that the proposed unit is appropriate & it is the employers’ responsibility to demonstrate why a proposed bargaining unit is not appropriate. To be eligible, employees must be in the job categories the union claims appropriate for representation in the bargaining unit. The composition of an appropriate bargaining unit is often an area of controversy, with the union & management attempting to enlarge or decrease the unit to include or eliminate employees who are more likely to favor their positions. © SHRM
In determining the appropriateness of a bargaining unit, the NLRB would considerA. if more than 50% of the employees signed authorization cards. B. if employees are frequently transferred across plants or offices. the percentage of temporary workers in the proposed unit. D. the percentage of managers and supervisors in the workforce. NOTES p. 165 Answer: B Community of interests - the mutuality of interests among employees in bargaining for wages, hours & working conditions is frequently applied. These criteria are difficult to interpret because there is no benchmark used to define the degree of similarity necessary between employee groups. The NLRB considers whether employees have sufficient common interests so as not to create substantial conflicts in bargaining. Geographical & physical proximity Employer’s administrative/territorial divisions Functional integration Interchange of employees Bargaining history Employee desires Extent of organization © SHRM
Bars to the Election ProcessContract bar Statutory bar Certification-year bar Voluntary-recognition bar Blocking-charge bar Prior-petition bar Recognition bar 2011 NLRB ruling: Lamons Gasket overturned 2007 decision in Dana/Metaldyne, restoring the voluntary-recognition bar, which precludes a decertification election for 12 months after union recognition. NOTES p. 167 The NLRB will bar a petition for an election if any of the following situations exist: Contract bar – when a valid collective bargaining agreement exists Statutory bar – when a valid election has been conducted within the previous 12 months Certification-year bar – when a union has initially been certified during the previous 12 months Voluntary recognition bar – when a reasonable period after the union has been informally & voluntarily recognized by the employer has not elapsed. Blocking charge bar – when an unfair labor practice charge affecting the proposed bargaining unit is pending Prior petition bar – when a prior election petition was withdrawn by the requesting party within the past 6 months Recognition bar – when an employer recognizes a union; a decertification election is precluded for a minimum of 6 months & up to 12 months Figure 28 Bars to a Union Election p. 168 KEY POINT p. 169 Excelsior List is a list of employee names & addresses of all eligible bargaining unit employees that must be filed with the NLRB within 7 days after consent to or direction of an election. It is named after the case in which the NLRB first adopted this requirement Excelsior Underwear, Inc. This list is used by the NLRB as the voter eligibility list on election day. If the employer fails to provide a list, an election won by an employer can be set aside. The NLRB requirement attempts to ensure complete communication opportunities by both the organization & the union given the fact that the organization as the employer has access to addresses whereas the union would not. © SHRM
Voter Eligibility Eligible employees must be on the payroll:During the pay period prior to the direction of election. During the pay period preceding the election date. Striking employees who have been permanently replaced: May vote in any election conducted within 12 months after the strike’s commencement. Election time and place Employers must post NLRB notices. NOTES p Specific criteria regarding voter eligibility are established prior to an election. Questions often arise as to whether a given employee meets the criteria. Employees who are generally not eligible to vote because of presumed lack of continued interest in the unit include employees who Are on leave of absence & for whom there is no reasonable probability they will return to work at the end of leave Who have been permanently laid off or discharged NLRB has rules governing exceptions & how to handle situations of military leave, sick leave, vacation, layoff, etc. NLRB directs employers to post, in conspicuous places, election time & place & unit description for the election along with the general election procedures. In some cases, the NLRB may allow mail ballot elections. KEY POINT p. 170 Generally, employees in a bargaining unit must be on the payroll during both the payroll period immediately before the date of the direction of election & immediately preceding the date of the election. Striking workers who have been permanently replaced are eligible to vote in any election conducted within 12 months after the commencement of the strike. © SHRM
Election Campaign Union EmployerUntil 24 hours before the election, management may present speeches to employees during work time (“captive audience”) but may not make promises or threats. Union may visit employees in their homes or contact them by phone or through the Internet. NOTES p. 171 Once the regional director of the NLRB schedules the election, the employer & union usually escalate the campaign, each preparing a calendar of events & activities & draft a communication campaign. KEY POINT p. 171 One advantage management has over unions is that they have a “captive audience” in their employees & can present speeches during working time. While these speeches are permitted under NLRA, they must not be presented within 24 hours of the election & content must not include promises of benefits or threats of reprisals. To compensate for this advantage, unions may visit employees in their homes or contact them via telephone or the internet. Etc. to discuss the election. Campaigning by either party in/around the polling place during election hours is prohibited. However, literature may be distributed & oral solicitation may continue outside the prescribed area until voting is over. For example, the union may continue campaigning as long as it is off company property. © SHRM
Election No campaigning is allowed in or around the polling place.Eligibility challenges must be made before the vote is accepted into the ballot box. NLRB determines validity of challenged ballots after the election if they have potential to affect the outcome. NOTES p. 171 At the election, both parties (union & employer) have representatives, called election observers, who assist the NLRB agent in verifying the eligibility of voters. Either party may challenge voter eligibility & the NLRB agent must challenge the vote of anyone who is not on the Excelsior/voter list. KEY POINT p. 171 Challenges must be made before the completed ballot is accepted into the ballot box. Thus, challenges must be made before the individual goes into the booth to vote. Challenged ballots are kept apart from unchallenged ones. The NLRB determines the validity of these ballots in post-election proceedings if they have the potential to affect the outcome of the election. © SHRM
There are 1,000 eligible employees. Of those, 800 voteThere are 1,000 eligible employees. Of those, 800 vote. What are the minimum votes needed by the union to win the election? 400 401 501 667 NOTES p. 171 Answer: B Counting of eligible votes – unless otherwise ordered by the NLRB, the NLRB agent counts unchallenged ballots immediately after the election & prepares the tally of election results that is provided to the parties. If the union does not get a majority, the statutory bar prohibits another election in the same unit for one year by that union or any union. If a union is certified, the employer is required to meet with union reps at reasonable times & to bargain with the union in good faith. KEY POINT p. 172 If a simple majority (50% plus one person) of those casting a ballot (to be distinguished from those eligible to vote) vote for union representation, the union is certified. For example, in a bargaining unit with 100 employees & in which 60 actually cast a ballot, 31 votes would be required for union certification. A tie vote results in no certification. © SHRM
Overturning Election OutcomesThe NLRB may set aside election results if the employer is found to have committed an “egregious” ULP that has a “chilling effect” on employees’ rights to organize and is an attempt to “nip in the bud” an organizing effort. NOTES p. 172 Overturning Election Outcomes The NLRB may set aside election results if the employer is found to have committed an “egregious” ULP (Unfair Labor Practice) that has a “chilling effect” on employees’ rights to organize and is an attempt to “nip in the bud” an organizing effort The current NLRB has indicated increased interest in investigating union “nip in the bud” complaints © SHRM
Certification If the union loses, the NLRB regional director certifies the election results. Results are subject to NLRB review. Union may opt to continue to pressure the employer to agree to a voluntary card check. If the union wins, the NLRB certifies it as the exclusive representative of the bargaining unit. NOTES p. 173 Certification of Results/Representative is the next step in the unionization process. The outcomes of an election is not final until it is certified by the NLRB. If the union loses, the NLRB regional director certifies the election results Results are subject to NLRB review Union may opt to continue to pressure the employer to agree to a voluntary card check If the union wins, the NLRB certifies it as the exclusive representative of the bargaining unit If the union’s petition for election is rejected, they must decide whether to abandon the organizing campaign altogether or to continue pressure on the employer so that the employer agrees to a voluntary card check. Union pressure may include any of the public relations tactics previously discussed. © SHRM
Other Paths to UnionizationEmployer volunteers recognition based on proof of majority status. Union convinces employer to grant recognition. Union convinces employer to witness its majority status. NLRB orders employer to bargain with the union if serious ULPs have been committed. NOTES p. 174 Other Paths to Unionization Employer volunteers recognition based on proof of majority status. Union convinces employer to grant recognition. Union convinces employer to witness its majority status. NLRB orders employer to bargain with the union if serious ULPs have been committed © SHRM
Union DecertificationTerminates union representation. Management may not guide or support the effort. At least 30% of the employees in the bargaining unit must petition for a decertification election. If the petition is valid, a secret-ballot election is held. A majority of the voting employees must approve decertification. (A tie vote also removes the union.) NOTES p. 176 Union Decertification Terminates union representation. Management may not guide or support the effort. At least 30% of the employees in the bargaining unit must petition for a decertification election. If the petition is valid, a secret-ballot election is held. A majority of the voting employees must approve decertification. (A tie vote also removes the union. KEY POINT p. 176 A decertification election is the means provided by the Taft-Hartley Act for employees to terminate union representation. Decertification may occur if employees believe that the union is not representing their interests. A variety of reasons for this activity have been cited: Fair treatment of employees by employers Unfair or discriminatory treatment by the union Poor job by unions of providing service to members Striking employees that can be replaced Employees want to join a different union The employer may not encourage or unduly assist the employees in the preparation or filing of a decertification. KEY POINT p. 177 The decertification petition must be filed with the NLRB between 60 and 90 days before the expiration of the current contract in industries other than health care or at any time when no contract is in effect. In health care, the petition must be filed 90 to 120 days before the expiration of the contract or at any time when no contract is in effect. © SHRM
If employees successfully vote to decertify a union on June 30 in a given year, when can a new election be held? A. Within 30 days B. Between 60 and 90 days C. After January 1 D. After one year NOTES p. 177 Answer: D After a decertification election is held, no elections will be allowed in the invloved unit for one year. KEY POINT p. 177 Whereas decertification totally removes the union from its position as bargaining rep, another procedure called deauthorization removes the authority of the bargaining rep in a non-right-to-work state to negotiate or enforce a union security clause (e.g., a requirement in the collective bargaining agreement that every employee must pay union dues or agency fees). Union security clauses-provisions in a collective bargaining agreement designed to protect the institutional authority or survival of the union (e.g. making union membership of payment of dues compulsory for all or some of the employees in a bargaining unit) © SHRM
Union DeauthorizationRemoves the union’s authority to negotiate or enforce union security clauses. Occurs without management support or guidance. At least 30% of the employees in the bargaining unit must petition for deauthorization. After investigation, the NLRB orders an election. A majority of the employees eligible to vote must approve deauthorization. (Failure to vote is the same as a vote against deauthorization.) NOTES p. 178 Union Deauthorization Removes the union’s authority to negotiate or enforce union security clauses Remaining contract provisions continue to be in effect Occurs without management support or guidance At least 30% of the employees in the bargaining unit must petition for deauthorization. After investigation, the NLRB orders an election A majority of the employees eligible to vote must approve deauthorization. (Failure to vote is the same as a vote against deauthorization © SHRM
Criteria for Election Petition and WinElection Type Needed for NLRB Petition Needed for Election Win Certification 30% of eligible employees Union needs at least 50% plus one of votes cast Decertification 30% of bargaining unit employees At least 50% of votes cast must be to decertify the union Deauthorization At least 50% plus one of eligible voters must vote to deauthorize NOTES p. 178 Criteria for Election Petition & Win – the requirements for filing a petition for elections, winning certification or decertification, and deauthorizing a union may vary & may be confusing to someone who is not a labor relations specialist. Figure 29 Election Requirements p (same as slide) 12 Progress Check Questions p. 181 © SHRM
Rights and ResponsibilitiesEmployer Employee Exercise freedom of speech. File ULP charge. Protect property. Discipline or terminate for just cause. Sign authorization card. Form a union. Engage in concerted activities Strike or picket. Circulate petition for redress of a grievance. 5-8: Unfair Labor Practices p Both employers & employees enjoy certain statutory rights. In the context of a unionization campaign, these rights can be extended to cover the following types of actions Employer Exercise freedom of speech File ULP charge Protect property Discipline or terminate for just cause Employee Sign authorization card Form a union Engage in concerted activities Strike or picket Circulate petition for redress of a grievance Figure 30 Basic Rights of Employers & Employees p. 186 © SHRM
Unfair Labor PracticesWhat A violation of a right under labor relations statutes. Can be initiated by an individual employee, a union, or management. The NLRB adjudicates ULPs in the private sector; the FLRA or state agency processes cases in the public sector. Who How NOTES p. 186 The NLRA prohibits employers from engaging in unfair labor practices & the LMRA prohibits unions from engaging in unfair labor practices. In NLRB terminology, is referred to as a “C” case The NLRB adjudicates private-sector ULP charges & the Federal Labor Relations Authority (FLRA) or state agencies process cases in the public sector. Both facts & motivations of the employer and the union are considered when determining whether actions are illegal. KEY POINT p. 187 The responsibility to observe these basic rights extends to the agents of both employers & employees, under the agent-principal relationship. In other worlds, employers are responsible for the actions of their agents or officers. It is important for employers to be aware of the definitions of supervisory status under different laws. Supervisory status is defined under the law by function rather than by job title. Figure 31 Employer & Union ULPs under NLRA and LMRA p. 187 Agent-principal relationship: Employers are responsible for managers and supervisors. Unions are responsible for agents and officers. © SHRM
Employer ULPs: Interference, Restraint, and CoercionThe NLRA prohibits employers from: Creating an atmosphere of violence. Threats of relocation or plant closings. Interfering with Section 7 rights. Statements that unionization necessarily leads to strikes and loss of jobs. Promises of improvements. Surveillance or interrogation of employees. Statements that employees will lose existing benefits. Inciting antiunion activity. NOTES p. 188 Employers may not interfere with union activity by making threats of reprisal (implied or otherwise) or promises. They may not restrain employees from participating in union activities, nor intimidate or coerce employees. Employer ULPs: Interfering with Section 7 rights Creating an atmosphere of violence Threats of relocation or plant closings Statements that unionization necessarily leads to strikes & loss of jobs Statements that employees will lose existing benefits Promises of improvements Surveillance/interrogation of employees Inciting antiunion activity KEY POINT p. 188 A threat of reprisal is any threat, whether overt or subtle, that is intended to or can reasonably be construed to intimidate or coerce employees to act in certain way or punish then for not acting in a certain way. © SHRM
T I P S Avoiding ULPs To avoid ULPs, do not: Threaten. Interrogate.Promise. Spy. NOTES p. 191 TIPS acronym: To avoid ULP, do not Threaten Interrogate Promise Spy © SHRM
Other Employer ULPs Domination and unlawful support of labor organizations Electromation, E. I. Dupont & Company, Crown Cork and Seal Company, Syracuse University Discrimination to discourage union membership Retaliation against employees who file charges or testify Refusal to bargain in good faith NOTES p. 191 Domination and unlawful support of labor organizations Electromation, E. I. Dupont & Company, Crown Cork and Seal Company, Syracuse University Discrimination to discourage union membership Retaliation against employees who file charges or testify Refusal to bargain in good faith KEY POINT p. 193 As a result of the court decisions, employers must avoid actions that would convert employee participation committees into what he NLRB interprets as a company-dominated labor organization. In general, a committee is not a labor organization if it Performs a management function or simply forwards recommendations to the employer that the employer is free to ignore or overrule, as with any suggestion from lower-level management or supervisions Does not act in a representative manner – critiquing & revising ideas & agreeing on proposals to the employer Limits its activity to clarifying suggestions from other employees without prioritizing/recommending them Deals only with operational issues, such as productivity, work processes, efficiency, or product or service quality –rather than working conditions, wages or benefits KEY POINT p. 194 Employers are not required to agree to an economic proposal, make a concession, or enter into a specific agreement. Nor is an employer required to agree to a proposal that is not in the employer’s best interests. Employers are not permitted to bargain with the individual employees in the bargaining unit. © SHRM
Union ULPs: Restraints and CoercionThe LMRA prohibits unions from engaging in: Activities that coerce employees to sign authorization cards or petitions. Threats of physical violence. Threats of economic reprisals. Strikes or boycotts of neutral or third-party employers. NOTES p. 194 Union ULPs were primarily defined under the 1947 Taft-Hartley amendment to the NLRA, also known as the Labor Management Relations Act./ LMRA The LMRA prohibits unions from engaging in Activities that coerce employees to sign authorization cards or petitions Threats of physical violence Threats of economic reprisals Strikes or boycotts of neutral or 3rd party employers © SHRM
Union ULPs: Duty of Fair RepresentationUnion must act fairly on behalf of all members. Union may not ignore grievances that have merit or base decisions on discrimination or personal feelings. Union must represent nonmembers in bargaining and grievance issues in the same way it represents dues-paying members. NOTES p. 195 The duty of fair representation requires that unions act fairly on behalf of the employees they represent . A union that does not fairly represent its members may be in violation of the LMRA. Union must act fairly on behalf of all members. Union may not ignore grievances that have merit or base decisions on discrimination or personal feelings. Union must represent nonmembers in bargaining and grievance issues in the same way it represents dues-paying members Retaliation Refusal to bargain Discrimination against nonmembers KEY POINT p. 196 Employees may charge that the union has failed to represent all members fairly. Access to the courts for resolving such a grievance is allowed on the theory that a union’s breach of fair representation renders the grievance & arbitration process useless. Remedies for breach of fair representation may include an award of back pay, some or all of which may be charged to the union. © SHRM
Other Union ULPs Inducing unlawful discrimination by the employerExcessive or discriminatory membership fees Featherbedding Refusal to bargain A union cannot force an employer to commit an act in violation of contract provisions. Fees must be appropriately based on industry wages and practices. The union cannot require more workers than necessary. NOTES p. 197 Other Union ULPs Inducing unlawful discrimination by the employer - union can’t force an employer to commit an act in violation of contract provisions Excessive or discriminatory membership fees – fees must be appropriately based on industry wages & practices Featherbedding – the union cannot require more workers than necessary Refusal to bargain – the union must bargain in good faith KEY POINT p. 200 If the regional office determines that there is a prima facie case – there is some evidence that is not refuted by clear, convincing & documented facts - the regional director issues a complaint & then usually tries to settle it. This avoids delay & expense of a formal NLRB hearing. The NLRB attempts to gain the consent of the charging party, bit that consent is not necessary for settlement. KEY POINT p. 201 The hearing is conducted by an administrative law judge (ALJ) who is knowledgeable about labor law & practices but not necessarily admitted to the bar. A staff attorney of the NLRB’s regional office is responsible for prosecuting the case, but the party who filed the ULP chare may also present evidence at the hearing. Both parties are entitled to representation at the hearing. Figure 32 Examples of Union unfair Labor Practices p. 198 Figure 33 Procedure for Filing ULP Charges p. 200 The union must bargain in good faith. © SHRM
Possible NLRB-Ordered RemediesNOTES p. 202 At the close of the hearing, the ALJ reviews the evidence & the parties’ briefs, issues a report & issues the “decision & order”. The NLRB can order a wide range of sanctions against employers, depending on the severity of the offense in isolating the NLRA. Figure 34 Possible ULP Remedies p. 203 6 Progress Check Questions p. 207 © SHRM
Collective Bargaining ProcessCollective Bargaining is the process by which management & union representatives negotiate the employment conditions for a particular bargaining unit. Collective bargaining covers such items as waged, benefits, & working conditions & may include other matters deemed important by the members. Collective bargaining agreement – The combined factors influencing collective bargaining may be generally categorized as Legal & regulatory factors Bargaining precedents Public & employee opinion Economic conditions Figure 35 Factors Affecting the Collective Bargaining Process p. 211 © SHRM
Collective Bargaining Subjects• Closed shops • Discriminatory hiring Mandatory subjects (required by law and NLRB) Permissive subjects (voluntary) Illegal (unlawful by statute) • Overtime • Seniority • Vacation/holidays • Benefits for retired union members • Settlement of ULPs • Neutrality agreements NOTES p. 211 Categories of Collective Bargaining Subjects Mandatory subjects (required by law & NLRB) Overtime Seniority Vacation/holidays Illegal subjects (unlawful by statute) Closed shops Discriminatory hiring Permissive subjects (voluntary) Benefits for retired union members Settlement of ULPs Neutrality agreements KEY POINT p. 212 The significance of these distinctions is that the parties may bargain to impasse & strike only on mandatory subjects of bargaining. Insistence upon a nonmandatory subject that the other party refuses to discuss is an unfair labor practice that violates good faith bargaining requirement. Collective bargaining in the public sector © SHRM
Collective Bargaining TypesPattern Union negotiates agreements similar to those existing in the industry or region. Coalition Multiple employers negotiate with one union. Coordinated Employer bargains with several unions simultane-ously but on a separate basis. Segmented Specific issues are negotiated by ad hoc committees and then voted on by entire group. . NOTES p. 213 Collective bargaining types Pattern - union negotiates agreements similar to those existing in the industry or region Coalition - multiple employers negotiate with one union Coordinated - employer bargains with several unions simultaneously but on a separate basis Segmented - specific issues are negotiated by ad hoc committees and then voted on by entire group © SHRM
Contract NegotiationsWin-win negotiation Principled Integrative Interest-based Win-lose negotiation Positional Distributive Good-faith bargaining requires that both parties enter into discussion with fair and open minds and a desire to reach an agreement. NOTES p. 215 The formal phase of contract negotiations begin when Either the union or management requests meeting with management to discuss a written agreement or submit proposals Within the time specified in the existing agreement, either party notifies the other of its intent to renew, extend or renegotiate the existing agreement The parties jointly agree to discuss their actual interests & how to satisfy those interests through a written agreement Approaches to contract negotiations p. 216 Win-win negotiation Principled Integrative Interest-based Win-lose negotiation Positional Distributive Good-faith bargaining requires that both partied enter into a discussion with fair & open minds and a desire to reach an agreement. KEY POINT p. 217 The employer does not need to provide information in the following circumstances If the union requests the info for non-bargaining of related purposes If the cost of providing he info is prohibitive to the employer If the info would violate privacy of an employee or disclose the employee’s trade secrets 7 financial reports. If the union has waived/relinquished its right to the requested information © SHRM
Violations of Good-Faith BargainingSurface bargaining Lack of concession Refusal to advance proposals and demands Dilatory tactics Imposing conditions Bypassing the representative Commission of ULPs Not providing information Refusal to bargain NOTES p. 218 Violations of Good-Faith Bargaining Surface bargaining – going through the motions of bargaining with no real intention of completing a formal agreement. Lack of concession – although no one is required to make concessions, the courts’ & NLRB’s definitions of good faith suggest that willingness to compromise is an essential ingredient in good-faith bargaining. Refusal to advance proposals and demands – NLRB considers the advancement of proposals as a positive factor in determining overall good faith Dilatory tactics – the law requires that the parties meet & “confer at reasonable times & intervals”. Obviously, refusal to meet at all with the union does not satisfy the positive duty imposed upon the employer. Imposing conditions – attempts to impose conditions that are so burdensome or unreasonable as to indicate bad faith will be scrutinized by the NLRB Bypassing the representative – an employer violates its duty to bargain when it refuses to negotiate with the union representative. The employer must deal with the statutory representative in conducting bargaining negotiations. Commission of ULPs – such practices may reflect poorly upon the good faith of the guilty party. Not providing information – upon request, info must be supplies to the union to enable it to understand & intelligently discuss the issues raised in bargaining. Refusal to bargain – on a mandatory item (one must bargain over these) or insistence on a permissive item (one may bargain over these) is usually viewed as bad-faith bargaining. © SHRM
Other Bargaining ConditionsUnlawful circumvention Bargaining proposals not disclosed to the union may not be discussed with employees. Notice requirements The other party desiring contract negotiation must notify the other party of its intention to bargain a new agreement. Duty of successor employers or unions Selling a majority interest in a unionized company generally does not affect the company’s bargaining obligations. NOTES p. 219 Other Bargaining Conditions Unlawful circumvention - bargaining proposals not disclosed to the union may not be discussed with employees Notice requirements - the other party desiring contract negotiation must notify the other party of its intention to bargain a new agreement Duty of successor employers or unions - selling a majority interest in a unionized company generally does not affect the company’s bargaining obligations KEY POINT p. 220 (entire page) Explains what happens when a new employer purchases the assets of a unionized company’s operations KEY POINT p. 223 Given the importance of this issue to the union, the union may be tempted to forego compensation and/or benefit improvements to ensure that all employees will be their dues-paying members. Court cases in recent years have stated that employees cannot be required to be subject to a union’s rules & regulations based on a union shop clause & have reduced what may be required by employees to simply paying union dues. An agency shop clause states that even if workers do not join the union, they must still pay the equivalent of dues (a service fee) to the union. Remember that right-to-work states employees cannot be required to pay any dues or fees to the union if they choose not to join the union Figure 36 Hints on Bargaining p. 221 Figure 37 Typical Articles in a Union Contract p. 222 © SHRM
Shop Provisions in RTW and Non-RTW StatesNOTES p. 223 HR professionals may find it challenging to remember the distinctions between the different types of “shops”, their legality, & what is permissible in a right-to-work (RTW) state In all states, closed shops (when employers must hire union members) are illegal In all states, open shops (no requirements for union membership) are legal In RTW states, union shops are illegal under state law. In non-RTW states, collective bargaining agreements may include requirements that a new employee become a union member within a certain period of time after employment: 30 days for most workplaces but 7 days for construction projects. Membership” has been held by the Supreme Court to mean only payment of dues, if compliance is a condition of employment. The union cannot demand termination of employment if the employee who does not become a member still pays dues, although that employee cannot attend union meetings or vote on union matters & is not subject to union discipline/fines Agency shops – no expectation that new employees will become union members, although in non-RTW states, employees may be required to pay a service fee equivalent to dues. In RTW states, new employees may not be required to pay any union fees. Hence, agency shops are illegal, although employees are free to join unions & pay dues/fees. Management Rights/Reserved Rights Doctrine p. 225 Employee security & seniority p. 226 Compensation, benefits, & working conditions p. 226 Strikes & lockouts p. 226 Term of agreement p. 227 KEY POINT p. 225 Dues check off – unions usually attempt to arrange for payment of dues through dues checkoff, where employees agree in writing to an automatic deduction of dues from their paychecks. By law, employees must agree to dues checkoff in writing. KEY POINT p. 226 Bumping, frequently stipulated in collective bargaining agreements, refers to giving more senior workers whose jobs have been eliminated the right to transfer into jobs of less senior workers. Although it maintains jobs for long-service employees, can cause problems if it leads to frequent job changes or bumps less-qualified individuals into jobs. Other issues are increased training costs as well as a higher average wage rate. KEY POINT p. 227 Contracts also often contain a zipper clause in which both parties waive the right to demand bargaining on any matter not dealt with in the contract, whether or not that matter was contemplated when the contract was negotiated/signed. Figure 38 Shop Provisions in Non-RTW and RTW States p. 224 © SHRM
Costing a Contract HR can provide data for contract costing,including: Workplace demographics. Current and historical data. Effects of concessions on workforce planning. Effects of contract on exempt or nonunionized employees. NOTES p. 228 Assessing the financial impact of a contract’s term is a complex analysis that requires special expertise. Small changes in one area can have significant implications for total labor costs if they apply to a large # of workers for a significant amount of time To analyze a contract’s cost, all of the items for each proposed scenario are calculated for the length of the contract .The scenarios can be compared in different ways Percentage of increase in cost per hour paid & cost per hour worked over current contract or conditions Total annual labor cost Cost of new demands as a % of payroll Total annual cost per employee HR can provide data for contract costing, including: Workplace demographics Current and historical data Effects of concessions on workforce planning Effects of contract on exempt or nonunionized employees Cost per hour paid or worked = Cost of labor Number of hours paid or worked Contract Administration & Enforcement Provisions p. 229 Complaint Resolution – formal grievance procedure p. 229 © SHRM
Formal Grievance Procedure4. Third party 3. Higher-level management 2. Intermediate supervisor 1. Immediate supervisor NOTES p. 230 The employee grievance procedure involves several steps: Immediate supervisor- may be written/oral, although most are written. Supervisors try to resolve & may work with union steward to resolve. If steward agrees that no valid grievance has occurred, the process ends. Intermediate supervisor- formal written grievance proceeds to the next level of the intermediate supervisor, department head, or unit manager & a higher level union official. Higher-level procedure- if not resolved according to time frame set by union contract, often 5 to 15 days, moves to a member of the union grievance committee/rep from union structure. In some companies, the complaint can only go as high as the local plant manager or could go to top company officials Third party- final stage, a neutral arbitrator may be called in to settle the issue. Highest levels of each side are represented in this stage. May include company vice-president for HR and/or legal counsel. For the union, may include the local union president, national union rep, or legal counsel. Figure 39 Guidelines for Handling Grievances p. 231 © SHRM
When handling a union grievance, you shouldA. accept informal amendments to the contract if they are in the company’s interest. B. avoid bias by not reviewing prior grievance records. ask the union to identify the violated contract provisions. rely on the union steward’s investigation of the grievance. NOTES p. Answer: C © SHRM
The Weingarten Case Deals with the rights of union employees to have another person present during investigatory interviews. Person attending must be affiliated with the union, not an attorney or relative. NOTES p. 231 The Weingarten case is a landmark labor relations case that dealt with the right of a unionized employee to have another person present during certain investigatory interviews Impact of the Weingarten case: Deals with the rights of union employees to have another person present during investigatory interviews - Weingarten rights Person attending must be affiliated with the union, not an attorney or relative When employee requests the presence of a union rep, management can Stop questioning until the rep arrives Give employee option of continuing without a rep or foregoing the interview & having disciplinary decision made on basis of other info, without employee input Supreme Court ruled that Management must inform union rep of subject of the interview The rep must be allowed to speak privately with employee before the interview The rep can interrupt to clarify question or to object to confusing/intimidating tactics The rep cannot tell an employee what to say but may advise employee as to how to answer a question At end of interview, the rep can add info to support the employee’s case Also important to appreciate the limits of the Weingarten doctrine: An employee's right to have a union rep present applies only to investigatory interview Person attending investigatory interview must be affiliated with union that reps the employee. Employee can be prohibited from having an attorney or relative present. If interview proceeds, employer is not required to bargain with the rep or to permit him/her to disrupt the proper conduct of the interview. © SHRM
An employer is conducting an investigatory interview with a union employee. According to the Weingarten rights, the A. employer is obligated to provide representation if the employee cannot find anyone. B. employee may request that a labor attorney be present. employer is not required to bargain with the union representative. D. employee may request that the interview be postponed for 48 hours. NOTES p. 232 Answer: C KEY POINT p. 233 Over the years, NLRB vacillated on the applicability of Weingarten to nonunion employees. In July 2000, NLRB extended these rights to nonunion employees. Nonunion employees who were not supervisors were able to bring along a coworker to an investigatory meeting with an employer. In June 2004, the NLRB ruled by a 3-2 vote that Weingarten rights apply only to unionized employees, reversing the decision. However, this ruling may itself be reversed by the current board. This is another area that HR professionals will need to monitor closely. Under voluntary arbitration, both parties willingly submit their differences the arbitration process. Voluntary arbitration usually comes about because it is required by union contract. Under compulsory arbitration, the law requires that both parties submit to arbitration. In the US, compulsory arbitration is common only in the public sector, where employees may have limitations on their ability to strike. It is also common in cases of national emergency where the president invokes the power to require arbitration. KEY POINT p. 234 The arbitration process is much the same when a labor contract has expired. Arbitration without a contract involves a formal complaint structure. Because there is no contract between the organization & the employee, it is possible that after arbitration the dispute could go to court. KEY POINT p. 236 The union contract generally outlines who pays for an arbitrator. Often the union & the employer equally split the cost. 12 Progress Check Questions p. 238 © SHRM
Lockouts and Strikes Lockout StrikeManagement shutdown of operations to prevent union employees from working Strike A refusal by employees to work 5-10: Strikes, Picketing, and Secondary Boycotts p Management & labor do not always reach agreement while negotiating contract terms and there can be issues that lead to a deadlock that cannot be resolved, resulting in Lockout – occurs when management shuts down operations to prevent union employees from working in an attempt to prevent sabotage to facilities, injuries to employees who continue to work, & to force the union to modify its bargaining position. Employer does not commit an unfair labor practice in locking out employees solely in support of its legitimate bargaining position & upon impasse because it is not considered inherently destructive of employee rights. Strike – refusal by employees to work. Section 501 of LMRA defines it as” any…concerted stoppage of work by employees (including stoppage by reason of the expiration of a collective bargaining agreement) or any concerted slowdown or other concerted interruption of operations by employees.” Strike may be used by a union when an impasse occurs in bargaining to force employer concessions or to protest an unfair labor practice. © SHRM
Protected Concerted ActivitiesThe right of a union to strike and to picket The right of other employees not to cross a picket line NOTES p. 244 Protected Concerted Activities KEY POINT p. 245 Generally speaking, the following are considered protected concerted activities: The right of a union to strike & picket an employer The right of other employees not to cross a picket line Content for next slide: Types of strikes Economic strikes – when parties fail to reach agreement over terms & conditions of employment, including key economic issues, during the collective bargaining period. Unfair labor practice strikes – when employees cease work because they are motivated, at least in part, by the employer committing unfair labor practices – for example refusing to bargain. Wildcat strikes - work stoppages that are not sanctioned by the union & violate a no-strike clause in the contract. Jurisdictional strikes – members of one union stop work to pressure the employer to assign work to them rather than to members of another union. Occurs when there is friction between two or more unions that are working for a common employer. Commonly found in the construction industry. Sympathy strikes – union engaged in a sympathy strike has no contractual relationship with the struck employer but refuses to work in support of another union that is striking that employer. Legality of this depends on the legality of the strike being supported & also the collective bargaining agreement of the union that is sympathy striking. © SHRM
Replacement of StrikersEmployer is not required to displace permanent replacement workers except as future opportunities become available. Strike is an economic strike. Employer must reinstate striking workers. Strike occurs as the result of ULPs. NOTES p. 246 KEY POINT p. 246 The employer’s obligation to reinstating strikers depends on whether If a strike was the result of an unfair labor practice, the employer may hire only temporary replacements & is required to reinstate strikers. As with economic strikes, HR must be mindful of local employment at will (EAW) laws & careful to avoid creating contractual commitments to replacement workers KEY POINT p. 247 Wildcat strikers re generally unprotected under the NLRA & therefore can be terminated or disciplined. Partial or intermittent wildcat strikes, such as slowdowns, are also not protected & employees who participate in them may be subject to discipline, including discharge. In general the LMRA Labor-Management Relations Act has been interpreted to not prohibit an employee’s refusal to cross a picket line at another employer’s place of business when there is a strike approved by a majority union. Sympathy strikes, which can take the form of refusing to cross a picket line, may be unprotected, however, if they violate union contract clauses that specifically prohibit such conduct. Types of picketing p. 248 Primary - aimed against the primary employer in dispute & is lawful as long as the strike itself is lawful. Organizational & recognitional – to pressure or coerce an employer to recognize a union as a bargaining agent for the employees. Informational - done with express intent not to cause a work stoppage, but to publicize either the existence of a labor dispute or information concerning the dispute. Area-standards - form of picketing with purpose of encouraging employer to observe the standards in that industry in that locality. This kind of picketing has formed legal restrictions than picketing to force an employer to recognize a union or to impress employees noneconomic benefits. Common situs – when lawful picketing of a primary employer also affects a secondary employer that occupies common premises HR must take care not to create a contractual commitment to replacement workers. © SHRM
Secondary Boycotts When union attempts to influence an employer by exerting pressure on another employer. Employers may lose neutrality and be subject to union pressure in the following cases: Ally doctrine Single/joint employer or alter ego doctrines Double breasting Straight-line operations Hot cargo clauses NOTES p. 250 Secondary boycotts are when union attempts to influence an employer by exerting pressure on another employer. Employers may lose neutrality and be subject to union pressure in the following cases: Ally doctrine – when a struck employer effectively uses employees of an ally as strike breakers & when union extends its primary picketing to this employer, no violation of the LMRA’s secondary boycott prohibition exists. Single/joint employer or alter ego doctrines – Joint employment cases arise when employees may be said to work for two employers at the same time. One example of joint employment arises in the case of employees of personnel agencies who work for another employer pursuant to a contract between the agency and the second employer. Alter ego doctrines - when a unionized employer establishes a new business in the same general field, the Board often finds that the new business is the “disguised continuation” of the unionized operation and will impose on the new business the same bargaining and contractual obligations which bound the original business. Double breasting - refers to a situation in which a common owner operates a union business & a nonunion business. If the employer shifts work to the nonunion business to avoid to impact of a strike, the nonunion business can be picketed Straight-line operations – a neutral employer may lose its neutrality if it’s engaged in operations that are a phase of the struck employer’s work. Hot cargo clauses – agreement that union members are not required to handle goods made by nonunion labor or a struck plant; generally illegal. © SHRM
B. Common situs picketing C. Single/joint employer doctrines Which provision would allow a union to picket a chain of assisted-living facilities at all of their locations? A. Ally doctrine B. Common situs picketing C. Single/joint employer doctrines D. Straight-line operations NOTES p. 251 Answer: C Often an issue in deciding whether an employer is really secondary in a labor dispute is whether commonly owned businesses or affiliates are single employer, joint employer, alter ego doctrines Double breasting refers to a situation in which a common owner operates a union business & a nonunion business. If the employer shifts work to the nonunion business to avoid to impact of a strike, the nonunion business can be picketed. KEY POINT p. 251 The NLRB & the courts have historically permitted double breasting where two entities with common ownership have a legitimate business purpose & different management, equipment, and customers. According to the NLRB, unions may insist that contractors or contractor associations include an anti-dual-shop clause in their collective bargaining agreement to prevent double breasting. If the contractor refuses, the unions may strike. KEY POINT p. 252 The Labor-Management Reporting & Disclosure Act generally made hot cargo clauses illegal. Hot cargo clauses are agreements that union members are not required to handle goods made by nonunion labor or a struck plant: KEY POINT p. 253 Picket line misconduct & strike violence are also outside the Labor-Management Reporting & Disclosure Act’s protection. An employer may lawfully refuse to reinstate or reemploy strikers who are guilty of such conduct. A sit-down strike, when the strikers remain on the employer premises during the strike, taking possession of the property & excluding others from entry, is also an unlawful, unprotected activity. © SHRM
Legality of Strikes, Picketing, and Secondary BoycottsConditional by Law Illegal Conditional by law/contract Primary picketing Consumer picketing Working to rule Organizational and recognition picketing Informational picketing Area standards picketing Common situs Wildcat Jurisdictional Secondary boycotts Sitdown strikes Slowdown Sympathy strike NOTES p. 253 Some actions will always be legal & some will always be illegal. Other forms of picketing must satisfy various criteria or their status will be affected. Legal Primary picketing Consumer picketing Working to rule Conditional by Law Organizational and recognition picketing Informational picketing Area standards picketing - form of picketing with purpose of encouraging employer to observe the standards in that industry in that locality. This kind of picketing has formed legal restrictions than picketing to force Common situs - when lawful picketing of a primary employer also affects a secondary employer that occupies common premises Figure 41 Legal Status of Various Forms of Strikes, Picketing, Boycotts p. 254 Figure 42 Preparing for the Strike p. 255 7 Progress Check Questions p. 256 © SHRM
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