5. Emp. n Labr. Relat 39 Flashcards
1
Q
Employee Relations
A
The way in which an organization responds to, handles, or addresses any issue that has impact on employees and their relationships
- To and with other employees
- To and with managers
- To and with those outside the employment in the organisation with whom they come into contact as part of their employment experience.
2
Q
Labor Relations
A
Labor relations speaks to the many dimensions and facets of the relationship between management and groups of workers who happen to be represented by a labor union. In some ways, labor relations can be thought of as a subset of employee relations.
3
Q
Sherman Anti-trust Act, 1890
A
A law passed in an effort to curb the growth of monopolies. Under the Act, any business combination that sought to restrain trade or commerce would from that time forward be illegal. Act states that
Section 1: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.
Section 2: “Every person who shall monopolise, or attempt to monopolise, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.
-Pursuit and investigating trusts fall on gov. attorneys and district courts
-Relevant to compensation’s impact on recruitment and retention because an improperly conducted salary survey or even info attempts to gather data on competitors wage rates can constitute a vilation of this act.
4
Q
Clayton Act, 1914
A
A law enacted to build on and clarify the Sherman Act. The provisions of the Clayton Act that is most relevant to labor-and therefore to HR professionals- is Section 6, which specifically exempts labor unions and agricultural organisations from the Sherman Anti-trust act.
5
Q
Railway Labor Act, 1926
A
- Needed to end Wildcat strikes
- Railroad Workers wanted to organise, to be recognised as the exclusive bargaining agent tin dealing with the railroad and to negotiate and enforce agreements.
- “Work Now, Grieve Later” came into existence through this.
- Amended in 1936 to include airlines
6
Q
Norris-LaGuardia Act, 1932
A
A law that strengthened unions even more by establishing the rights of labor unions to organize and to strike. It also prohibited federal courts from enforcing “yellow dog” contracts or agreements.
-Yellow dog: Agreement that an employer will hire you as long as you don’t join or have any involvement in a union.
7
Q
National Industrial Recovery Act, 1933
A
A law that guaranteed laborers the rights to organise and bargain collectively.
- Established no Yellow dogging.
- Struck down in 1935 by Supreme Court, reverting back to just Railway workers
8
Q
National Labor Relations Act (Wagner Act), 1935
A
A law that guaranteed the right to self-organisation, to form, join, or assist labor organisations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.
-Certain groups excluded: managers, supervisors, confidential employees (secretaires, EA’s, managers who can make labor relations decisions, and several others.
9
Q
Unfair Labor Practice (ULP)
A
- Unlawful acts committed by either employers or unions. 5 Catergories as stated in Wagner Act.
- To interfere with , restrain, or coerce employees in the exercise of their rights to engage in concerted or union activities or refrain from them
- To dominate or interfere with the formation or administration of a labor org.
- To discriminate against an employee for filing charges with the NLRB or taking part in any NLRB proceedings.
- To refuse to bargain with the union that is the lawful representative of it’s employees.
10
Q
National Labor Relations Board
A
A federal agency created by the national Labor Relations Act (NLRA) that is responsible for administering and enforcing the rights established by the NLRA. As stated on its website, the NLRB has two principle functions:
- To determine, through secret ballot, the free democratic choice by employees whether they want to be represented by a union in dealing with their employers and if so, by which union
- To prevent and remedy unlawful acts, called unfair labor practices, by either employers or unions.
11
Q
Closed Shop
A
Employers can hire only employees who are already members of the union. Closed shops were ruled illegal by the Taft-Hartley Act; however, hiring halls do, in one sense, encourage a closed-shop.
12
Q
Union Shop
A
Newly hired employees must join the union within a specified period of time, usually 30 days, and must remain a member of the union as a condition of employment. In a union shop, employers must terminate employees who are not union members. Union shops are illegal in “right to work” states.
13
Q
Labor Management Relations Act, (Taft Hartley Act), 1947
A
Amendment to the National Relations Act (NRLA) (Wagner Act): First, the identification of behaviours and practices that would be considered unsafe labor practices (ULP’s) on the part of the unions, and second, a provision that would allow the government to issue an injunction against a strike that threatened national interests. Taft-Hartley identified the following unfair labor practices that unions could commit:
- Restraining or coercing employees in the exercise of their rights or an employer in the choice of it’s bargaining representative.
- Causing an employer to discriminate against and employee
- Refusing to bargain with the employer of the employees it represents
- Engaging in certain types of secondary boycotts
- requiring excessive dues
- Engaging in featherbedding
- Picketing for recognition for more than 30 days without petitioning for an election
- Entering into hot cargo agreements
- Striking or picketing a health care establishment without giving the required notice
14
Q
Primary Boycott
A
An organized effort of a labor union and its members to discourage consumers from buying the products of a particular employer
15
Q
Secondary Boycott
A
Effort to convince others to stop doing business with a particular organisation that is the subject of a primary boycott.
16
Q
Dues
A
With deductions, employers agree to deduct and forward to the union dues amounts agreed to by workers. By law, employees must agree IN WRITING to this deduction.
17
Q
Featherbedding
A
An agreement that requires the employer to pay wages to union members whether or not their work is needed.
18
Q
Picketing
A
An expression of free speech that takes place when people congregate outside a workplace. To be considered protected concerted activity, picketing must remain nonviolent,
19
Q
Wildcat picketing
A
Striking while there is a NO-STRIKE clause in the CBA.
20
Q
Recognition Picketing
A
Recognition picketing is picketing to obtain the employer’s recognition of the union as the bargaining representative of its employees. Such picketing seeks to persuade or coerce an employer to recognise a union as the bargaining agent of his employees.
21
Q
Strike
A
A “CONCERTED stoppage” of work by employees
22
Q
Right-to-work state
A
States in which union shops and closed shops are illegal. In a right-to-work state, no employee has to join the union.
23
Q
Jurisdictional Strike
A
A strike through which a UNION SEEKS to pressure an employer to assign particular work to its members rather than to members of other unions or to nonunion workers.
24
Q
Federal Mediation and Conciliation Service
A
The Federal Mediation and Conciliation Service (FMCS), founded in 1947 is an independent agency of the United States government, and the nation’s largest public agency for dispute resolution and conflict management, providing mediation services and related conflict prevention and resolution services in the private, public, and federal sectors.
25
U.S. Conciliation service
Look this up
26
Labor Management and Reporting and Disclosure Act (Landrum-Griffin Act), 1959
A law that created additional labor-management guidelines, including:
- A requirement that unions submit annual financial reporting to the Department of Labor (DOL) to document how union members' dues were spent.
- A bill of rights for union members guaranteeing them freedom of speech and periodic secret elections.
- The designation of every union official as a fiduciary
- Even stronger provisions relative to secondary boycotting and organisational and recognition picketing.
27
Federal Labor Relations statute (Title VII of the Civil Service Reform Act,) 1978
- Allows certain non-postal federal employees to organise, bargain collectively, and to participate through labor organisations of their choice in decisions affecting their working lives.
- The statute defines the universe of organisations that most directly rely on the FLRA: The Federal agencies that employ workers eligible to be represented by labor organisations and the labor organisations that have been recognised as the exclusive representatives of these employees.
28
Schechter Poultry Corp V. United States, 1935
A supreme Court case that rendered the National Industrial Recovery Act unconstitutional. Although this decision was wholly unrelated to labor and collective bargaining, the Supreme Court decision rendered the labor-related provisions illegal as well. The right to organise and bargain reverted, once again, to railway workers and no one else. This would not, however be the case for long.
29
NLRB v. Mackay Radio and Telegraph Co., 1938
The Supreme Court case that established that employers have the right to permanently replace workers who strike during an economic strike.
30
NLRB v. Weingarten, 1975
Established right of unionised employees to have union representation at an investigatory interview with management if the employee reasonably believes that discipline might result from that meeting.
- Reversed in 2000 adding non-union could have representation.
- Reversed again in 2004.
31
Communication Workers of America v. Beck, 1988
S.C. case established right for bargaining unit members to pay only that portion of union dues that is attributable to mainline union responsibilities (collective bargaining, organising in the same industry, contract admin and the like.) Up to employee to exercise her rights.
32
Specialty Healthcare and Rehabilitation Center of Mobile, 2011
The National Labor Relations Board (NLRB) decision in this case permits the organisation of micro-units in organisations, even when the majority of employees do not want or seek union representation.
33
Employee Surveys
Also called attitude or climate surveys) Employees can express their opinions or share their perspectives. Employees can contribute in a meaningful and significant way to their org by having a voice in shaping the policies, practices, and directions of their orgs.
34
Focus Groups
Consists of small but representative sample of individuals within an organisation. Within each focus group, discussions are led. by a neutral facilitator who seeks to elicit feedback and input on a specific subject.
35
Employee Participation Groups
Invited employees to participate actively in the process of managing the org and by contributing the ideas and providing feedback.
- Provide excellent way of encouraging creative involvement and enhancing commitment.
- The way they are administered can be subject to NLRA legality or illegality.
36
Open-door policy
A "standing invitation" and a genuine one, for employees to raise their concerns with managers or human resources, face to face. **Cannot result in penalties, formal or other wise, against those employees who avail themselves to this resource.
37
Suggestion Programs
Programs that INVITE employees to submit their ideas (often anonymously) relative to any work-related topic, such as improving work systems, identifying or eliminating safety concerns, or even exposing unethical (or criminal) behavior.
38
MBWA-walking around
Management by walking around
- Dedicated amount of time with employees on a regular basis.
- Increasing visibility the manager creates opps to provide feedback to and receive input from employees.
- Increase access to the boss.
39
Confidentiality
In this context is what can and can't be shared with the employee as opposed to what the employer can and can't keep confidential from an employers obligation to act
-Reminding employees of YOUR commitment to maintaining confidentiality is part of the truth telling.
40
Organizational Culture
"The way things are done around here" The formal and informal of what an organisation is all about.
-Encompasses Historical events, current events, and future events (whether potential, likely, or simply rumoured). More specifically, organisational culture reflects and embodies the norms, mores, values, beliefs, customs and attitudes of the organisation and the people who work within that organisation.
41
Employee Involvement Strategies
Deliberate efforts to actively and meaningfully involve employees in the experience of their own employment. HR professionals must seek to actively and meaningfully involve employees in the experience of their own employment.
42
Employee communication strategies
Effective employee relations! Organisations must be deliberate about communicating with and not just communicating to, employees.
43
Diversity
Refers to the process of recognising, valuing, and embracing the many ways in which a group or organisation embodies differences and leveraging those differences to enhance the overall performance of individuals and groups.
- It is no way limited to the protected classes
- recognize differences in communication styles, thought patterns, and other factors that make us unique.
44
Inclusion
Making a living mosaic out of the differences explored in diversity. Inclusion creates a unified whole of many diverse parts.
45
Employee Handbook
Frequently used to communicate information about policies, procedures, and rules. In writing. About obligations and benefits that are associated with being employee.
46
Turnover
The number of employees who terminate voluntarily or involuntarily from an organisation (during a specified time frame.
Levels ...-Divided by the Total number of scheduled workdays (during specified time frame)
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Absenteeism
Total number of days on which employees did NOT work but were scheduled to work (during specified time frame)
-Divided by Total number of scheduled workdays (during specified time frame)
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Work-related accidents/injuries/ "preventable" illnesses
Use metrics provided by OSHA
49
Employee Survey Results
Must be designed to ensure reliability and validity. They also must be administered in a manner that is sound and consistent so that nothing can taint the results.
50
ROI
Return on Investment: a metric that calculates the absolute or relative worth, value, and effectiveness.
Investment Rev + Investment Cost/ Investment Cost
51
ROI Training/ Initiative Calculation
1. Calculate the cost associated with the current situation, as is, if no HRD/Training intervention were implemented (cost of NOT implementing the HRD initiative)
2. Calculate the cost associated with implementing the HRD/Training intervention. Consider all direct and indirect costs.
3. Calculate the financial gains that will accrue from implementing the HRD/training initiative
52
Quantitative Analysis
Historical data is measured and scrutinised to extract OBJECTIVE and meaningful insights. Correlation and Tendency are two elements you should be familiar with.
53
Correlation
Quantitative analysis involves measuring correlation. Through measurement and comparison, correlation and mathematical determines whether a demonstrated relationship exists between two factors or entities.
-A positive correlation or negative correlation indicates that a relationship does exist. The correlation coefficient is a number between -1 and +1 that defines the strength of that relationship. The closer the coefficient is to zero, the weaker the relationship between the two factors.
54
Measures of Central Tendency
A more in-depth look into averages..for HR purposes...Mean, Median, and Mode.
55
Mean
The total of all the values (or numbers) in a set divided by the number of values that are in that set.
56
Median
The median is derived by putting a set of data in numeric order, FROM LOWEST TO HIGHEST, and identifying the value that is in the middle.
57
Mode
Mode is the value that appears most frequently in a set.
58
Qualitative Analysis
No mathematical modeling or calculations. Based on Judgements that are subjective in nature.
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Progressive Discipline Steps
1. discussion of the substandard performance issue ("Coaching"rather than "Counseling" )
2. Verbal warning
3. Written Warning
4. Final written warning or suspension
5. Involuntary Termination
60
Business/ Organisational Ethics
A concept that speaks to shared values-based system designed to inculcate within the organisation's population a sense of how to conduct business properly.
61
Discipline and Discharge
Discipline is a more positive term than punish or penalise. Management reserves the right to discipline an discharge or term the employment relationship. discharge is the culmination of unsuccessful discipline.
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Grievance Handling
Formal process established by the CBA (Collective Bargaining Agreement) through which disagreements arising from the admin of the labor agreement are resolved.
63
Contract Administration
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The CBA (Collective Bargaining Agreement) is an living document that provides the structure and framework within which the daily happenings of the employment relationship are brought to life.
-Also provides the language that will govern the employment relationship-language that is at times subject to different interpretations, thereby presenting challenges that need to be resolved.
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64
Grievance procedure (Steps)
Formal process established by the CBA through which disagreements arising from the admin of the labor agreement are resolved.
1. Initiate complaint
2. Escalate the complaint internally
3. Reach the highest level of internal escalation
4. Participate in binding arbitration
65
Step 1 in Grievance process: Initiate a complaint
Employee or union must do so within a specified time-frame after the date on which the alleged contract violation took place (or alternately the date the employee or union became aware of alleged violation).
- Usually (formally filed) written, but sometimes permitted as (informal) verbal
- Complaint is usually filed with a supervior, who then has a PRESCRIBED NUMBER OF DAYS within which to meet with employee and the union steward to discuss the situation.
- In most cases, the supervisor will then have a prescribed number of days after that initial meeting to reach a decision relative to the situation.
- The supervisor can then choose to grant the requested relief in part, in whole, or not at all
- If employee or union decide to accept the resolution the grievance is considered to be settled. If the decided not to accept t, the union has a PRESCRIBED NUMBER OF DAYS within which to appeal the grievance to the next step.
* * Many times if management fails to respond in the prescribed time it will move to the next level. If Employee/union fails to respond in the prescribed times the grievance and process of grievance is dismissed.
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Step 2 in Grievance process: Escalate the Complaint internally
- Time frames are important here as well
| - Meeting occur between higher levels of management and union leadership.
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Step 3 in Grievance process: The highest level of Internal Escalation
- Higher ups, Union's national office sitting across form someone from the Organisation's corporate headquarters.
- If step 3 does not produce a resolution that is acceptable to the union, the union must decide within A PRESCRIBED PERIOD OF TIME, whether to appeal to binding arbitration.
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Step 4 in Grievance process: Participate in Binding Arbitration
Disagreement is referred to an outside arbitrator, who will render a decision that will be binding upon the union and management.
-Most times CBA will fully outline the arbitration process to which parties will be held if the grievance is appealed to step 4.
69
Interest Arbitration
Arbitration that is used to resolve conflicts around contract language during the collective bargaining process.
70
Arbitrator
An individual selected to participate in the resolution of an agreement and the rendering of a binding decision.
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Arbitrator panels
Panels that are usually composed of 3 arbitrators, one of whom is selected by management, one of whom is selected by the union, and one of whom is selected jointly. (This person is referred to as the neutral arbitrator.)
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Federal Mediation and Conciliation Service (FMCS):
Source maintains list of qualified arbitrators
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American Arbitration Association (AAA)
Maintains list of qualified arbitrators
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Arbitration Hearing
A relatively formal process (not wholly unlike a court hearing) that can be conducted by an individual arbitrator or by a panel of arbitrators. The hearing includes the presentation of evidence, the testimony of witnesses, and opening and closing statements from both sides. Lawyers are often present as well, which adds even more to the judicial"feel" of the hearing.
75
Permanent Arbitrators
An individual arbitration agreement in which one arbitrator who is selected for a fixed period of time (often the duration of the contract) hears all arbitration cases that arise during that period of time. One advantage to this approach is the arbitrator becomes a very knowledgeable about the contract. One potential disadvantage could emerge if the union, management, or both are dissatisfied with the arbitrator for some reason.
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Ad hoc arbitrators
More frequently, each arbitration will result in the selection of an arbitrator. The arbitrator who is selected may specialise in the particular topic with which the arbitration deals, which can be distinct advantage. Also, neither party will be "stuck" with an arbitrator with whom it is not happy.
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Decisions
Arbitrators must resolve grievances on the basis of OBJECTIVE INTERPRETATION of the contract as it was written. If the contract language is unclear, the arbitrator must then work to ascertain where the organisation "is " where it needs to be, and how the HR initiative can specifically serve to bridge that gap.
78
Local Unions
Largely responsible for day to day administration of the labor agreement and relationship with union members. Usually have an elected president and selected stewards who rep the workers in the workplace. Larger local unions might have full-time paid business agent. Most local belong to and are chartered by a larger national union.
79
National Unions
Bring together all the union locals who are scattered across the country. National unions have far more power with respect to bargaining and political influence than the union locals could have on their own. Also advise and guide local unions and may mange nationwide benefits programs (retirement programs and health insurance plans.)
80
Federations
A group of national unions. Speak with one voice, thus wielding even greater influence and lobbying power. They do not get involved with bargaining or contract admin.
81
International Labor Orgs
Much the same as federations only "bigger" I.e. International Confederation of Free Trade Unions (IFCTU)
82
Union Organizing
Through an organising process, a union seeks to become the recognized representative of a bargaining unit of individuals within an organisation. A bargaining unit can represent part or all of an organisation's workforce (except sups, mangers, and others that are excluded.)
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Organizing Process
1. Make a connection- express interest
2. confirm interest- Obtain authorization cards
3. Obtain recognition
4. The campaign
5. The election
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Recognition: Step 3 (Org. Process)
After recognition has been obtained, the employer must provide the NLRB with. list of the names and addresses of all the employees who are eligible to vote in the union certification election (the Excelsior List). NLRB will, in turn, give list to the union. must provided names within 7 days of NLRB scheduling an election.
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The Campaign: Step 4 (Org. Process)
The NLRB will carry out secret ballot election 30-60 days after the NLRB determines that an election will be held. ULP are prohibited during the organising campaigns.
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The Election: Step 5 (Org. Process)
The NLRB conducts the secret ballot election, usually at the workplace, between 30 and 60 days after the NLRB issues it's decision.
- Management and the union are both permitted to have observers present at the election.
- Observers may object to a vote if they feel that a vote is being cast illegally. The NLRB is responsible for selsoving all voter eligibility issues prior to the final vote count.
- If a majority of the voters (rather then employees ??) vote in favor or the proposed bargaining unit, the until will be established. Even if there is more than one union competing to represent proposed CBU
- A simple majority vote is still required for a union to be recognized. If there is no majority vote, the top two choices will have an election to generate a majority vote.
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Step 1: make the Connection- Express Interest
In this step, contact is established. Either the union initiates contact with the employees in an effort to begin the process of exploring whether there is interest in forming a union, or one or more employees who have an interest in forming a union initiate contact with the union.
88
Step 2: Confirm Interest-Obtain Authorization cards
Unions confirm and demonstrate employees interest by obtaining authorization cards signed by employees. When 30% of the employees who would be in a collective bargaining unit have signed authorization cards, the union can petition NLRB to hold and election. (30% demonstrates a showing of interest but union will try to get 50%.
- In general, petitions form union will not be accepted if an election:
- has been held within a prior year
- if a union has been certified within the past year, but has not successfully negotiated a contract
- Or it there is a valid contract (not to exceed three years) in effort.
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Salting
Activity engaged in by a "salt," a union organizer who seeks employment with the organization for the express purpose of actively organising and campaigning within the organisation.
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Organisational Picketing
Picketing that is designed to generate interest on the part of employees vote for union representation.
91
Captive Meeting audience
A mandatory meeting held by management, in the workplace, during regular working hours, during which the employer can share its opinions relative to unions and the unionisation of its operations. Captive audience meeting cannot be held within 24 hours of the actual election.
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Union decertification
The process by which employees vote to remove the union's rights to represent the employees. This process is similar to certification, only in reverse. Decertification requires 50% (or more) of individuals who vote in the decertification election.
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Union Deauthorization
The revocation of the union security clause in the contract, which thereby creates an "open shop."
- Open shops is where a factory, office, or other business establishment in which a union, chosen by a majority of the employees, acts as representative of all the employees in making agreements with the employer, but in which union membership is not a condition of employment.
* *Deauthorization requires a majority vote of the entire bargaining unit, not just the members of the unit who vote in the deauthorization election.
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Protected concerted activity
Refers to associational rights that are granted to employees through Section 7 of the NLRA. Protected concerted activity can include activity aimed at improving employees' terms and conditions of employment. Through this language, the NLRA protects associational rights for employees who DO NOT BELONG TO UNION AS WELL AS for employees who are unionized. This interpretation was confirmed by 1948. As such, employers need to be careful not to interfere with protected concerted activities even in the workplaces that are nonunionized.
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Labor strikes
Two different types of strikes or work stoppages. ULP strikes and economic strikes
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ULP Strikes
Sometimes Unions allege, correctly or not, that the employer has committed a ULP during contract negotiations and call a strike in response to those alleged ULPs. Employers cannot hire permanent strike replacements during a ULP strike, and the striking workers must be returned to their Original positions after the strike is over.
97
Economic Strikes
Any strike that is not directly tied to the employer's commission of a ULP is considered, by law to be an economic strike. Economic strikes are called in an effort to obtain some sort of economic concessions from the employer during collective bargaining negotiations- concessions relating to higher wages, better working conditions, low health-insurance premiums, and the like.
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Sympathy strikes
Employees who are not directly involved in an economic dispute but who choose not to cross a picket line out of support for striking workers are engaging in a sympathy strike. Sympathy strikers do not need to be employed by the same employer as the employees who are actually on strike to engage in a sympathy strike.
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Double Breasting Picketing
Type of Secondary Boycott. takes place when a company that owns or operate union as well as nonunion operations shifts work to the nonunion operation in an effort to diminish the impact of the strike. In this situation, the nonunion operations to which the work has been shifted can be picketed.
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Common Situs Picketing
Secondary Boycott. When members of a labor union picket a workplace in which multiple employers work- the employer with whom the labor union has the dispute, as well as one or more employers with whom the labor union does not have a dispute. Common situs picketing is legal as long as the picket signs indicate the name of the employer with whom the picketers have a dispute.
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Jurisdictional Strikes
used to enforce employer to assign work to bargaining-unit employees instead of non-bargaining employees. Jurisdictional strikes constitute a ULP, and those who engage in jurisdictional strike can experience discipline up to and including termination.
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Collective Bargaining
Process by which an employer and a lobor union negotiate the terms of the collective bargaining agreement that will govern the employment relationship for those employees who are represented by the union.
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Good Faith Bargaining
Refraining from behaviours during the collective bargaining process that could constitute bad faith bargaining. The following behaviours, when demonstrated by either the union or the employer, could constitute bad faith bargaining.
- Failing to agree to meet at reasonable and convenient places or times.
- Failing to show up at the agreed-upon places or times.
- Failing to maintain an "open mind" during negotiations.
- Surface bargaining: going through the motions of bargaining, with no real intent of ultimately reaching agreement (in other words, keeping bargaining at the surface," without moving toward true agreement.
- Repeatedly withdrawing previous positions/ concessions
- Refusing to bargain on mandatory items, insisting on bargaining on permissive items, or attempting to bargain on illegal items.
- Committing any sort of unfair labor practice
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Surface bargaining
Going through the motions of bargaining, with no real intention of ultimately reaching agreement (in other words, keeping bargaining "at the surface" without moving toward true agreement.
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Required subjects
Those subjects that must be bargained in good faith if either the employer or the employees'f representative requests it. However, NRLA does not require either party to agree to a proposal or require the making of a concession.
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Voluntary or Permissive subjects
Topics that can be submitted to collective bargaining if and only if the employer and the employees' representative are willing to do so. Attempting to force bargaining on a voluntary or permissive subject constitutes a ULP.
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Illegal Subjects
Certain topics simply cannot be collectively bargained. these would include items that would constitute a violation of the NLRA, labor laws, or for that matter, any law.
-Examples would be closed-shop agreements, hot cargo clauses, and featherbedding.
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Hot Cargo Agreement
An agreement entered into by an employer in which the employer agrees to stop doing business with another entity. Hot cargo agrements can thus help to protect union work by allowing union members to refuse to handle or process work produced by nonunion entities. Hot caro agreements were made illegal by the Landrum-griffin act.
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Distributive Bargaining
The pie approach. An approach to collective bargaining in which each side sets forth it's position and oes its best to stick to it. By the end of the process, one side will have won some (or all) of what it wanted and one side will have lost some (or all) of what it wanted. Distributive bargaining is essentially adversarial in nature. It assumes that "there is only so much to go around" when you divide the pie, one side will end up with more and one side will end up with less.
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Integrative bargaining
An approach to collective bargaining that looks at multiple issues as a whole. Instead of just splitting up the pie, it creatively considers how it might be able to "make the pie bigger." It looks at how the needs of both sides can be better met when looked at in their entirety and how a win-win solution can be explored, rather than settling for the win-lose scenario that will almost invariably result in from distributive bargaining. In essence, advocates of integrative bargaining. believe that an agreement that renders one side "better off" does not necessarily have to result in the other side being "worse off." Instead, through creativity and cooperation, trade-offs are sought that will ultimately benefit both sides.
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Interest-based bargaining
Roger Fisher and William Ury: A good agreement is one that is wise and efficient and that ultimately results in everyone involved developing a stonger relationship with each other than they would have had not gone through this negotiation process together. 4 principles:
1. Separate the people form the problem
2. Focus on the interests rather than the positions
3. Generate a variety of options before settling on one
4. Resolve disagreements by focusing on objective criteria
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Collective Bargaining Agreements
Contains provisions related to a variety of conditions of employment and outlines that procedures to be used in settling disputes that may arise during the duration of the contract.
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Guidelines to Collective Bargaining Agreements
-a statement....
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Bumping rights
Process by which a more senior employee whose position is being eliminated may, instead of losing employment with the organisation, choose to replace a less senior employee (assuming that the more senior employee is qualified for the position into which she "wants to bump")
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Union Security Clause
Included in some agreements in an effort to protect the interests, strength, and security of the union. Union security clauses regulate membership in the union and consequently, relate to the payment of dues.
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Open Shop
Employees are required neither to join the union nor to pay union dues. This is the only type of union security clause that is legal in right to work states (and for federal government employees.)
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Agency Shop
Employees are not required to join the union. They must, however, pay a monthly fee that is typically equivalent to union dues.
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Maintenance of membership
Employees who voluntarily choose to join a union must maintain their individual membership for the duration of the labor contract. Each employee then has a 30-day window at the beginning of the next contract period during which he may terminate membership. Maintenance of membership arrangements are illegal in right-to-work states.
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Beck rights
Are the right for bargaining unit members to pay only that portion of union dues attributable to mainline union responsibilities (collective bargaining, organising in the same industry, contract admin, and the like. It is up to the employee however to exercise her Beck rights.
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Common Law
Refers to system of law in which traditions, customs, and precedents have the same force of law as existing laws or statures that have been enacted as a result of the full legislative process.
- Reinterpreted on case by case basis.
- Each case sets a precedent, but each can also be reinterpreted, thus setting new pecendent.
- Common law is eclipsed by the presence of an individual employment contract or CBA.
- Unionized employees might also be asked to adhere to one or more of these three types of agreements.
- Hold true at the federal and state level (with exception of Napoleonic law) Two subsets: Tort law and Contract law.
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Tort Doctrines
Wrongful acts committed against another individual's property or person. by def, the commission of tort infringes on another person's rights.
-Can include anything from damage or injuries sustained in an automobile accident., to malicious prosecution, to false imprisonment...
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Employment at Will
Common law tort doctrine u
- Either party can terminate the employment relationship at any time for any lawful reason.
- Many important exceptions:
- lawful reasons, public policy exceptions, wrongful terminations, implied contracts.
- HR must be particularly diligent about ensuring that a lawful, legitimate, nondiscriminatory reason exists and can be articulated when a decision to terminate an employee is being contemplated.
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Wrongful Termination
Common law tort doctrine: A tort doctrine that speaks to the employer having ended the employment relationship for wrongful reasons. One possible basis for wrongful termination could exist if an employee was terminated in violation of an individual employment contract. Others could apply as well and would vary from state to state.
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Implied Contracts
A tort doctrine under which an employee can allege that a promise of employment has been created, even when that promise is not explicitly written or articulated. Sometimes the language that is used within employer-published documents (electronic or hardcopy) can actually be sufficient to create a contract between the employer and the employees. An oral contract can be created when an "agent" of the employer "promises" some benefit or right. The term "agent" is legal and involved, but the point is this: be careful what your supervisors, recruiters, and others say to current, and especially to potential employees.
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Defamation
A tort doctrine that, in a general and practical sense, refers to making a false statement that damages someone's character or reputation. Defamation that is in written form is referred to as libel, and defamation that is made through the spoken word is referred to as slander. An employee could sue an employer for libel or slander for a variety of reasons, such as the provisions of a false references to potential employers.
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Invasion of privacy
The right to privacy is a key issue in the workplace and "workspace" (meaning the electronic dimensions of the workplace as well as the physical ones.) Modern tort law includes four categories of invasion of privacy, all of which employers need to be aware.
- Intrusion of solitude
- Public disclosure of private and embarrassing facts
- False Light
- Appropriation of identity
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Negligent hiring
A tort doctrine that speaks to an employer's decision to hire an individual without engaging in appropriate "due diligence" into that candidate's credentials, prior work experience, and the like. In essence, negligent hiring claims arise after an individual is hired through a flawed hiring process. A hiring process can be flawed for a number of reasons. For instance, a sound hiring process that is applied in an unsound manner would be flawed, as would a hiring process that is designed in a flawed manner. Flaws could relate to inadequate or poorly conducted reference checks, job requirements that do not reflect the skills or credentials that are truly required for a position, and the like.
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Negligent training
A tort doctrine that refers to an employe's failure to provide proper training to an employee when that failure results in some sort of unfit performance by the employee.
-Negligent training can emerge as an issue either when an employee who was hired for one position assumes another position for which she may not be fully and appropriately trained or when an employee's job duties and responsibilities change over time, thus requiring additional training if the employee is to continue performing the job in a fit manner.
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Negligent retention
A tort doctrine that speaks to the continued employment of an individual who is performing in an unfit manner and, therefore, should have been terminated. Negligent retention tort claims might be filed when an employee who should have been terminated but was not inflicts some sort of harm on another person. Negligent retention claims are often filed in conjunction with other tort claims, such as negligent training, intentional infliction of emotional distress, and the like.
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Negligent Referral
A tort doctrine that speaks to the failure of an organization to reveal truthful, negative information about an employee (or former employee) to a potential employer.
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Just Cause (Or Good)
Legal standard or test that is used to ascertain whether a specific disciplinary action was appropriate. Factors that may determine whether this standard was met could include the following:
- Whether the employee was warned in advance
- Whether the rule or standard that was violated was reasonable
- Whether a legitimate investigation looking into the totality of the circumstances around the alleged violation was conducted
- Whether reasonable "proof" of the violation existed or was obtained through investigation.
- Whether the rule has been applied consistently
- Whether the punishment is proportionate to a violation
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Good Cause (or Just)
Legal standard or test that is used to ascertain whether a specific disciplinary action was appropriate. Factors that may determine whether this standard was met could include the following:
- Whether the employee was warned in advance
- Whether the rule or standard that was violated was reasonable
- Whether a legitimate investigation looking into the totality of the circumstances around the alleged violation was conducted
- Whether reasonable "proof" of the violation existed or was obtained through investigation.
- Whether the rule has been applied consistently
- Whether the punishment is proportionate to a violation
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Oral Contract
An oral contract can be created when an agent of the employer promises some benefit or right. The term agent is legal and involved, but the point is this- be careful what your supervisors, recruiters, and others say to current (and also to potential) employees.
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Good Faith and Fair Dealing
Is a somewhat less frequently recongnized exception to the employment-at-will doctrine. The good faith and fair dealing exception to employment-at-will kicks in when a court decides that an employer has treated an employee unfairly or has failed to provide some benefit to that employee. Two examples of this might be an employer who terminates an employee to avoid paying sock options or one who terminates an employee right before her retirement benefits vest.
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Common law-contract
Another way in which common law directly affects the employment relationship is through contract doctrines. A contract is an agreement that is enforceable by law. contracts can be either oral or written.
- Employment contracts are made between an employer and an employee. They can include topics such as term on length of employment, compensation and benefits, job responsibilities and terminations.
- Terms and conditions under which an employee can be terminated constitute a critical element of any employment contract. Specifically, the contract should state whether the employee is employed under the employment-at-will doctrine, or -conversely, 0whether the employee can be terminated only for just cause.
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Arbitration agreement
in return for the opportunity to be employed by the org, the employee agrees to resolve employment-related issues through a neutral 3rd party (the arbitrator) instead of filing a private lawsuit against the employer.
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Circuit City, Inc. vs. Adams, 2001
Case confirmed mandatory arbitration agreements. court ruled that requiring employees to sign mandatory arbitration agreements as a condition of employment is legal and that such agreements are enforceable under Fed. Arbitration Act. (FAA)
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EEOC v. Waffle House, Inc. 2002
court ruled that although the existence of a signed mandatory arbitration agreement precluded the employee from being allowed to file a private lawsuit.. it did not preclude the EEOC from seeking its own independent action against an employer because the EEOC cannot be bound by a private arbitration agreement to which it was not a party.
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Non Compete Agreement
Prohibit current and (within stated limitations) former employees form competing against the employer.
