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EMPLOYMENT LAW FOR HUMAN RESOURCE PRACTICE, 5E David Walsh © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in.

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Presentation on theme: "EMPLOYMENT LAW FOR HUMAN RESOURCE PRACTICE, 5E David Walsh © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in."— Presentation transcript:

1 EMPLOYMENT LAW FOR HUMAN RESOURCE PRACTICE, 5E David Walsh © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

2 Unions & Collective Bargaining Chapter 14 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

3 Chapter Outline The Idea of Collective Bargaining The National Labor Relations Act (NLRA) Unfair Labor Practices (ULPs) Union Organizing & Representation Elections © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

4 The Idea of Collective Bargaining (1 of 3) Collective bargaining recognizes the value of employees banding together to deal with their employers Labor unions play a critical role in this Unions negotiate with employers to obtain labor agreements But collective bargaining is wildly unpopular with U.S. employers © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

5 The Idea of Collective Bargaining (2 of 3) The National Labor Relations Act (NLRA) is the principal federal law concerning self- organization & collective bargaining ◦ Administered by the National Labor Relations Board (NLRB) The Railway Labor Act (RLA) governs collective bargaining for railroads & airlines ◦ Administered by the National Mediation Board (NMB) © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

6 The Idea of Collective Bargaining (3 of 3) The Civil Service Reform Act (CSRA) governs collective bargaining by federal government employees ◦ Administered by the Federal Labor Relations Authority (FLRA) State laws or executive orders provide for collective bargaining by some or all state and local government employees in more than 40 states © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

7 The Nat’l Labor Relations Act Its duty is to protect the right of employees to engage in “concerted activities” and to decide whether or not to form a labor union for the purposes of negotiating with their employer Supervisors and managers are excluded from this protection, except when they are retaliated against for opposing an unfair labor practice ◦ Whether nurses are supervisors is contested ◦ The U.S. Supreme Court held that senior nurses on duty who make work assignments for aides, and monitor their work were supervisors © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

8 Employee Rights under the NLRA Engage in self-organization Form, join, or assist labor organizations Bargain collectively with their employer through representatives of their own choosing Go on strike Engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection Refrain from such activities © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

9 Employee Rights under NLRA - Concerted Activity FOR NLRA protection, activity must be: ◦ Concerted activity undertaken with or on behalf of other employees, not on behalf of an individual employee only ◦ Undertaken in “mutual aid or support” of a group, not solely for an individual employee’s benefit ◦ The activity must be related to employees’ concerns regarding their ages, hours, terms and conditions of employment ◦ The activity must not be extreme or abusive, malicious, defamatory or highly profane Online communications can also qualify © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

10 Unfair Labor Practices (1 of 3) Unfair labor practices; Employers must not: 1.Interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA 2.Dominate or interfere with the formation or administration of a labor organization 3.Discriminate against employees for the purpose of encouraging or discouraging membership in any labor organization 4.Retaliate against employees for filing charges or giving testimony under the act 5.Refuse to engage in collective bargaining © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

11 Unfair Labor Practices (2 of 3) Unfair labor practices; Unions must not: 1.Restrain or coerce employees in the exercise of their rights under the Act 2.Cause an employer to discriminate against an employee for the purpose of encouraging or discouraging membership in a labor organization 3.Refuse to engage in collective bargaining 4.Broaden labor disputes to include neutral employers (“secondary boycott”) 5.Charge excessive or initiation fees or dues 6.Cause an employer to pay for work not performed (“featherbedding”) 7.Picket for more than 30 days for the purpose of obtaining union recognition © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

12 Unfair Labor Practices (3 of 3) A labor organization is: ◦ Any organization…or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work ◦ Employee participation programs which include employees in decisions previously reserved for management, may be deemed “labor organizations” but are likely dominated by employers, so may violate the NLRA © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

13 Union Organizing & Representation Elections (1 of 2) ◦ Legal claims under the NLRA, especially interference with self-organization and discrimination against union supporters are common during periods when employees are attempting to form unions © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

14 Union Organizing & Representation Elections (2 of 2) © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

15 Union Organizing & …Elections – Union Organizing Campaigns ◦ A union organizing campaign typically includes:  Discussion and persuasion among workers  Distribution of literature  Wearing of buttons & other symbols of support  Requests to sign petitions or authorization cards ◦ If sufficient support is enlisted, the NLRB may hold an election to determine whether a union will be certified as the legal representative of the employees © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

16 Union Organizing & …Elections – Employer Responses… (1 of 2) Asking employees about their attitudes towards unions is not a per se violation of the NLRA, but tends to be intimidating and coerciveper se Employers should refrain from interrogating or polling employees to determine who wants a union or how employees intend to vote Employers may state their views regarding unionization at meetings to which they may require attendance, but may not threaten reprisals or promise benefits for voting a certain way © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

17 Union Organizing & …Elections – Employer Responses… (2 of 2) Employers must: ◦ not discharge or discriminate against pro-union employees ◦ allow employees to engage in discussions about unionization at work during nonwork time ◦ permit employees to wear union buttons and the like, and engage in rallies Employers may deny nonemployee organizers access to workplaces and private property surrounding them if the organizers have other access to the employees © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

18 Union Organizing & …Elections – Rep Election Procedures… (1 of 4) NLRA has procedures for representation elections The group of employees entitled to vote in the election must be determined by the NLRB to be an appropriate bargaining unit The determining factor is whether employees, who may hold differing job titles and be spread across many workplaces, share a “community of interest” ◦ Factors to be considered include similarity of skills, interrelationship of tasks, common pay systems, supervision, and personnel policies © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

19 Union Organizing & …Elections – Rep Election Procedures… (2 of 4) For the NLRB to order an election, at least 30% of the employees in a bargaining unit must desire union representation, a showing typically made by employees signing authorization cards If a majority of employees who cast votes choose union representation, the NLRB will certify the union as the “exclusive representative” of all employees in the unit The NLRA also provides for decertification elections, in which employees decide whether they want to continue to have union representation Voluntary recognition of a union by an employer is also permitted under NLRA © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

20 Union Organizing & …Elections – Rep Election Procedures… (3 of 4) Frustrated by delays in the process, unions are seeking to gain recognition through a card- check procedure in which the employer agrees to recognize the union if a majority of employees sign authorization cards ◦ Unions seeking this procedure also attempt to negotiate neutrality agreements, where employers promise to remain neutral, not oppose unionization A union is the exclusive representative of the unit, preventing employers from dealing with employees individually re pay, hours, etc. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

21 Union Organizing & …Elections – Rep Election Procedures… (4 of 4) Representation by a union is distinct from membership Because some members might prefer to enjoy the benefits of union representation without paying for it, unions negotiate with employers to include union security provisions in their labor agreements, requiring all employees in the unit to pay dues, etc. or be fired by the employer But the NLRA permits states to pass laws, known as right-to-work laws, making it illegal to incorporate union security provisions into labor agreements © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

22 Union Organizing & …Elections – Duty to Bargain in Good Faith It is an unfair labor practice to refuse to bargain Both parties have a duty to engage in good faith bargaining ◦ Difficult to determine when there is lack of good faith If raised by either party, a Mandatory topic must be negotiated over If a permissive topic is raised, the other party can decline to discuss it © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

23 Union Organizing & …Elections – …If Cannot Reach Agreement? (1 of 3) An impasse is reached when negotiations have become deadlocked, and both parties assume further negotiation would be futile If the parties agree, a mediator may be called in, but the mediator cannot impose an agreement If the parties are unable to reach agreement and a bargaining impasse is reached, then the employer can unilaterally implement its last, best and final offer © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

24 Union Organizing & …Elections – …If Cannot Reach Agreement? (2 of 3) Most negotiations conclude without a strike Strikers are not quitting, but trying to pressure their employers to act differently Private employers must not terminate employees for engaging in strikes Strikes, picketing, and related activities constitute concerted activity ◦ Federal government employees do not have the right to strike Strikers may not be fired, but can be replaced © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

25 Union Organizing & …Elections – …If Cannot Reach Agreement? (3 of 3) The rights of strikers depends on whether the strike is an economic strike or a ULP strike An economic strike pressures an employer to meet employee demands ◦ Strikers may be temporarily or permanently replaced Unfair labor practice (ULP) strikes are undertaken in response to employer ULPs to make them comply with the law ◦ Strikers may be temporarily replaced, and must be reinstated to their jobs on an unconditional request In some circumstances, employers may legally engage in a lockout of employees © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

26 Union Organizing & …Elections – Enforcing Labor Agreements (1 of x) Successful negotiations result in a labor agreement Employers must abide by the agreement Employees who believe their contractual rights have been violated may file grievances Union representatives and management will review the grievance, and resolve it according to the labor agreement, or if they fail to agree, an arbitrator may decide the dispute in a grievance arbitration Arbitrators may find a binding past practice to exist when past practice is clear © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

27 What Would You Do? Your small “big box” store recently acquired a manager who formerly worked at Wal-Mart, which has a long-standing opposition to unions. Over the past few years, some of your employees have talked about unionizing, but your low-key approach to handling it has kept you union-free. The new manager, upon hearing talk about unionizing from one of his subordinates, is taking a hard line, telling the employee he will be fired if he continues to talk about unionizing. What would you do? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

28 Next: Chapter 15– Occupational Safety & Health ◦ How “safe” is “safe enough?” ◦ What should you do when the OSHA inspector comes calling? ◦ What should you do to prevent his coming? The answers to these questions and more are next. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.


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