Employee and Labor Relations 1 (Mod 5) Flashcards
Common Law vs Statutory Law
Common Law = based on court rulings
Statutory Law = codified law
Employment at Will implications with handbooks
Many employee handbook provisions have been held by courts to be an IMPLIED CONTRACT.
Tort Law vs Contract Law
Tort Law = protects persons’ interests in their physical safety and well-being, in the possession and enjoyment of property, in their financial resources, and intangible resource of reputation
Contract Law = provides remedies if a promise is breached or the promise is recognized as a duty
Injunction:
What Is it?
Which law does it relate to?
Court order that restricts, prevents or requires certain activities
Sherman Anti-Trust Act was use to obtain injunctions against unions; Clayton Act minimally restricted the use of injunctions
Yellow Dog Contract:
What is it?
Which law does it relate to?
Force employees to agree to not join a union or participate in union activity as a condition of employment
Norris-LaGuardia Act made yellow dog contracts unenforceable in federal court; NLRA (Wagner Act) made them illegal
NLRA:
Two other names?
Key points?
National Labor Relations Act, Wagner Act
Protects the rights of employees to organize unhampered by management (Section 7); Section 8 prohibited employer conduct (ULPs) that would interfere with Section 7 rights
LMRA:
Two other names?
Key points?
Labor Management Relations Act, Taft-Hartley Act
Provides balance of power between union and management by designating certain union activities as ULPs
Sweetheart Contract
Forbids employers from establishing preferred deals with a specific union
Were outlawed by LMRA (aka Taft-Hartley)
Closed Shop
Requiring that employees be union members in order to be hired
Were made illegal under LMRA (Taft-Hartley) except for construction industry
Union Shop
New employees are required to join the union as a condition of employment after completion of a probationary period
Right To Work
Statutes that prohibit unions from making union membership a condition of employment
22 states have adopted right-to-work legislation that prohibits union shop clauses/union security clauses
LMRDA:
Two names?
Purpose?
Labor Management Reporting and Disclosure Act, Landrum-Griffin Act
Protects the rights of union members from corrupt or discriminatory labor unions; contained bill of rights for union members, closed shop exception for construction industry, law prohibiting discrimination based on union membership, requirement of union officers to report certain financial information
Public sector unions are covered by what law?
Civil Service Reform Act (which established Federal Labor Relations Authority or FLRA)
Organizing Techniques and Salting
Inside organizing, leafleting, meetings, home visits, telephone organizing, internet campaigns, indirect pressure, picketing (organizational, recognitional, informational, bannering), salting
Salting = use of paid union organizers (“salts”) to infiltrate an organization and organize its workers
Management Rights in a Campaign
Take the initiative; state an opinion; use line supervisors as a resource; safeguard employee names and addresses
Authorization Cards:
What are they?
How many are needed?
Cards signed by employees to indicate that they want union representation
At least 30% of eligible employees in a prospective bargaining unit must sign authorization cards before NLRB will order an election. A union, however, will not usually petition for an election unless more than half (50%) of eligible employees sign cards.
NLRB’s Determination of a Bargaining Unit
Considerations of the NLRB uses
NLRB must determine if proposed unit is appropriate (not that it is the most appropriate)
Considerations: community of interests (employees have sufficient common interests); geographical and physical proximity; employer’s administrative or territorial divisions; functional integration; interchange of employees; bargaining history; employee desires; extent of organization
Bars to the Election Process
Contract bar: when valid CBA exists; except for 30-day period preceding expiration
Statutory bar: when valid election has been conducted in previous 12 months
Certification-year bar: when union has been initially certified during previous 12 months
Voluntary-recognition bar: when union has been informally and voluntarily recognized by employer
Blocking-charge bar: when ULP affecting bargaining unit is pending
Prior-petition bar: when election petition was withdrawn by requesting party within past 6 months
Recognition bar: when employer recognizes a union; decertification precluded for 6-12 months
Excelsior List
List of the names and addresses of all eligible bargaining unit employees that the employer must file with NLRB within 7 days after consent to or direction of an election
Voter Eligibility
Employees in a bargaining unit must be on payroll during both the payroll period immediately before the date of direction of election and payroll period immediately preceding date of the election
Captive Audience Speeches
Speeches by management to employees during working time.
Must not be presented within 24 hours of a union election, and content must not include promises of benefits or threats of reprisals
Election/Certification Formula
50% + 1 of those voting = union certification
Recognition of a Union: most common way?
NLRB election process
Decertification Formula
30% of bargaining unit employees for NLRB petition
50% of those voting = decertification (i.e. tie vote results in decertification)
Deauthorization Formula
30% of bargaining unit employees for NLRB petition
50% of eligible voters + 1 = deauthorization; non-votes count as votes against deauthorization
ULP: What is it? Examples of each Who commits them? TIPS acronym
Violation of rights under labor-relations statutes
Employers and Unions can commit ULPs
Employer ULPs: interfere with, restrain or coerce employees in exercise of guaranteed rights; dominate or interfere with formation of union; encourage or discourage membership in union; discharge or discriminate for ULP charge; refuse to bargain collectively
Union ULPs: restrain or coerce employees in Section 7 rights; cause an employer to discriminate against employee; refuse to bargain collectively; encourage secondary boycotting; require excessive dues/fees; demand employer payment for services not performed; picket or force employer to recognize/bargain if another union is recognized
TIPS: Threaten, Interrogate, Promise, Spy
(Reminders supervisors what NOT to do during union organizing)
Employer Domination of Union: Two Cases
Electromation: action committees were labor organizations that had been formed to “deal with” employees concerning terms and conditions of employment and that had been unlawfully dominated by the employer
E.I. Dupont & Company: Employee involvement committees focused on safety and health improvement were illegal because Dupont management circumvented the legally chosen employee representatives and usurped the union’s right to represent its members
Mandatory, Permissive and Illegal Bargaining Subjects
Mandatory: those required by law (e.g. overtime, discharge, layoff, recall, seniority, promotions, transfer, safety, vacation, holidays, leave of absence, sick leave, union security, grievance, demotion, contracting out work)
Permissive (aka voluntary, nonmandatory): those that may be bargained but are not obligatory (e.g. retiree benefits, settlement of ULPs, neutrality agreements)
Illegal: those that are unlawful (e.g. closed shops, discriminatory hiring)
Do public sector unions have the right to strike?
No
Public Sector Unions: Permissive and Prohibited Bargaining Subjects
Defined by state and local laws.
Negotiators may be restricted in their ability to make bargaining concessions and concessions may need legal approval
Pattern, Coalition, Coordinated and Segmented Bargaining
Pattern bargaining (aka parallel bargaining): unions negotiate provisions covering wages and other benefits similar to those already provided in other agreements existing within the industry or region. Union focuses on one employer and then negotiates similar contracts with competitors. Also known as whipsawing.
Coalition bargaining (aka multiple employer bargaining): more than one employer negotiates with the union
Coordinated Bargaining: employer bargains with several unions simultaneously but on a separate basis
Segmented Bargaining: employer bargains with one union, but will assign specific bargaining issues to committees; proposals will then return to the group for a decision
Positional and Principled Negotiation
Distributive and Integrative Bargaining
Positional: people lock themselves into a position, parties lose sight of underlying problems, emphasis is placed on winning the position.
Principled negotiation: more productive; based on four premises (separate people from problem, focus on interests not positions, invent options for mutual gain, insist on objective criteria)
Distributive bargaining: parties are in conflict over issue and outcome represents gain for one and loss for the other
Integrative bargaining: more than one issue to be resolved; focuses on creative solutions that reconcile parties’ interests and result in mutual benefit
Good-Faith Bargaining and Violations of It
Good-faith bargaining: both parties enter into discussions with fair and open minds and sincere desire to arrive at agreement
Violations: surface bargaining, lack of concessions, refusal to advance proposals and demands, dilatory tactics, imposing conditions, bypassing the representative, commission of ULP during negotiations, not providing information, refusal to bargain
Duty of Successor Unions
Mutual bargaining obligation of an employer and a union when a majority interest in a unionized company is sold to another employer; new employer has no duty to bargain with union until it becomes perfectly clear that purchaser is “successor” employer.
Agency Shop
Even if workers do not join the union, they must still pay the equivalent of dues (a service fee) to the union. In right-to-work states, employees cannot be required to pay any dues or fees if they choose not to join the union.
Compulsory Arbitration and Public Sector Unions
Compulsory arbitration is common only in the public sector, where employees may have limitations on their ability to strike.
Mediation vs Arbitration
Mediation (aka conciliation): method of nonbinding dispute resolution involving a third party who tries to help the disputing parties reach a mutually agreeable decision
Arbitration: negotiated procedure in which labor and management agree to submit disputes arising under the terms of the contract to an impartial third party; both parties must accept decision of the arbitrator as final and binding
