Employee and Labor Relations Flashcards
Clayton Act
1914
Limited the use of injunctions to break strikes; exempted unions from the Sherman Act.
Payne v. The Western & Atlantic Railroad Company
1884
Defined employment at will.
Clause that states that even if workers do not join the union, they must still pay the equivalent of dues to the union.
Agency shop
Principle under which regulations that apply to employers and unions also apply to acts of their agents.
Agent-principle relationship
States that when a struck employer effectively uses the employees of an ally as strike breakers and when a union extends its primary picketing to this employer, no violation of the LMRA’s secondary boycott prohibitions exists.
Ally doctrine
Umbrella term used to describe a number of problem-solving and grievance resolution approaches.
Alternative dispute resolution (ADR)
Procedure in which disputes are submitted to one or more impartial persons for final determination.
Arbitration
Materials used in preparing a legal case (e.g. written reports, notes, data); usually excluded from discovery phase.
Attorney work product
Cards signed by employees to indicate that they want union representation.
Authorization cards
Union practice of displaying a banner outside the property of an employer to advertise union’s message.
Bannering
Group of employees a union wants to represent.
Bargaining unit
Giving moe-senior workers whose jobs have been eliminated the rights to transfer into jobs of less-senior workers
Bumping
Legal principle in which, for example, an HR department is culpable for discrimination even though HR had no desire to discriminate, such as when HR is persuaded to take an adverse action against an employee with protected statues by other biased employees who wish to discriminate against the individual.
“Cat’s paw” principle
NLRB certification indicating that a union has won an election and will be the exclusive representative of the bargaining unit.
Certification of representative
NLRB certification indicating that a union has lost an election.
Certification of results
As defined by the NLRB, an employer act that will result in hesitation by an employee to exercise protected rights under Section 7 or the NLRA.
“Chilling”
Case in which Supreme Court ruled a pre-hire employment application required that all employment disputes be settled by arbitration was enforceable under the Federal Arbitration Act.
Circuit City Stores v. Adams
Act that extended collective bargaining rights to federal employees.
Civil Service Reform Act
Act that minimally restricted the use of injunctions against labor and legalized peaceful strikes, picketing, and boycotts.
Clayton Act
Clause that states that union membership is a condition of hiring; is illegal (except in the construction industry)
Closed shops
When more than one employer negotiates with the union; also known as multiple employer bargaining.
Coalition bargaining
Process by which management and union representatives negotiate the employment conditions for a particular bargaining unit for a designated period of time.
Collective bargaining
Agreement or contract negotiated through collective bargaining process.
Collective bargaining agreement (CBA)
Group of people and resources who come together for the accomplishment of a specific organizational objective.
Committee
Dictates that custom and usage have the force of law, even if not specifically found in legislative enacted, codified, written laws.
Common law
Situation in which lawful picketing of a primary employer also affects a secondary employer that occupies common premises.
Common situs picketing
Mutuality of interests among employees in bargaining for wages, hours, and working conditions.
Community of interests
Work schedule that compresses a full week’s work into a fewer than five days.
Compressed workweek
Method of non-binding dispute resolution involving a third party who tries to help disputing parties reach a mutually agreeable decision; also known as mediation.
Conciliation (pojednanie)
Type of representation election that involves an agreement between an employer and a union to waive the pre-election hearing.
Consent election
Product boycotts involving such activities as distributing handbills, carrying placards, and urging customers to refuse to purchase products from a particular retail or wholesale business.
Consumer picketing
When an employer bargains with several unions simultaneously but on a separate basis.
Coordinated bargaining
Removes authority of a bargaining representative in a non-right-to work state to negotiate or enforce a union security clause.
Deauthorization
Means for employees to terminate union representation; removes union from its position as bargaining representative.
Decertification
Injuring someone’s reputation by making a false and malicious statement; may be spoken (slander) or written (libel)
Defamation
T ype of representation election ordered by the NLRB regional director after a pre-election hearing.
Directed election
When parties are in conflict over an issue and the outcome represents a gain for one party and a loss for the other; each party tries to negotiate for the best possible outcome.
Distributive bargaining
When a common owner operates both union and nonunion businesses.
Double breasting
Where employees agree in writing to an automatic deduction of dues from their paychecks.
Dues checkoff
Requires that union act fairly on behalf of the employees they represent in negotiating and administering collective bargaining agreements.
Duty of fair representation
Imposes on each party in a contract an obligation for honesty in the conducted of the transaction.
Duty of good faith and fair dealing
Common-law precept that imposes on employees a duty to be loyal to the employer.
Duty of loyalty
Mutual bargaining obligation of an employer and a union when a majority interest in a unionized company is sold to another employer.
Duty of successor employers or unions
1993 NLRB ruling that held certain employee committees to be illegal because Dupont management circumvented that legally chosen employee representatives and usurped the union’s right to represent its numbers.
E.I. Dupont & Company
1992 court decision that employers must deal cautiously with employee participation committees based on the LRB’s interpretation of what constitutes a company-dominated labor organization.
Electromation
Explains major HR and employee policies and procedures and generally describes the employees benefits provided.
Employee handbook
Planned and orderly attempt to link the shared interests of the employee and the organization for their mutual benefit.
Employee involvement (EI)
Programs to improve communication between employees and management and empower employees in some workplace decisions.
Employee participation programs (EPPs)
Common-law principle stating that employers have the right to hire, fire, demote, and promote whomever they choose for any reason unless there is a law or contract to the contrary and that employees have the right to quit a job at any time.
Employment-at-will (EAW)
List the employer has to provide the union with the names and addresses of certain employees within seven days after the direction of or consent to an election.
Excelsior List
Involves verbal promises made between employer and employee related to employment.
Express oral contract
Situation in which unions try to require the employment of more workers than is necessary.
Featherbedding
Administers the provisions of the various executive orders that fall under the Civil Service Reform Act of 1978.
Federal Labor Relations Authority (FLRA)
Offers assistance in contract settlement and maintains a list or arbitrators to help interpret contract language and resolve disputes.
Federal Mediation and Conciliation Service (FMCS)
Work schedule that requires employees to work an established number of hours per week but allows starting and ending times to vary.
Flextime
Small group (normally six to twelve) invited to actively participate in a structures discussion with a facilitator.
Focus group
Intentional deception relied upon and resulting in injury to another person.
Fraudulent misrepresentation
NLRB order to an employer to bargain with the union as a remedy for serious ULP charges against the employer.
Gissel order
Generally means that parties in a negotiation enter into discussion with fair and open minds and a sincere desire to arrive at an agreement.
Good-faith bargaining
Provides an orderly way to resolve differences of opinion in regard to a union contract.
Grievance procedure
Agreement that union members are not required to handle goods made by nonunion labor or a struck plant; generally illegal.
Hot cargo clauses
Those collective bargaining items that are unlawful by statue; also known as external subjects.
Illegal subjects
Exists when an agreement is implied from circumstances even though there is no express agreement between employer and employee.
Implied contracts
As related to international labor relations, where employees have legally mandated rights to participate in management decisions.
Industrial democracy
Type of picketing done to advise the public that an employer is nonunion.
Informal picketing
Enables an employer to prevent an employee from taking employment with a competitor when the current employer’s trade secrets might “inevitably” be disclosed.
Inevitable disclosure
Court order that restricts, prevents, or requires certain activities.
Injunction
Takes place when there is more than one issue to be resolved; focuses on creative solutions to conflicts that reconcile parties’ interests and results in mutual benefit.
Integrative bargaining
Form of negotiating where parties look for common ground and attempt to satisfy mutual interests through the bargaining process.
Interest-based bargaining (IBB)
Employee application and/or prior request system used to help employees change jobs.
Job bidding
Broadening the scope of a job by expanding the number of different tasks to be performed.
Job enlargement
Increases the depth of a job by adding responsibility for planning, organizing, controlling, and evaluation.
Job enrichment
Situation in which currently available positions are posted so interested and qualified employees may apply.
Job posting
Breaks the monotony of routine jobs by shifting people between comparable but different jobs.
Job rotation
Results when two part-time employees share one full-time job.
Job sharing
Any organization in which employees participate and which exists for the purpose of dealing with employers on work-related issues.
Labor organization
Act that provides balance of power between union and management by designating certain union activities as unfair labor practices; also known as Taft-Hartley Act
Labor-Management relations Act (LMRA) of 1947
Act that protects the rights of union member from corrupt or discriminatory labor unions; also known as Landrum-Griffin Act.
Labor-Management Reporting and Disclosure Act (LMRDA)
Act that protects the rights of union member from corrupt or discriminatory labor unions; also known as Labor-Management Reporting and Disclosure Act (LMRDA).
Landrum-Griffin Act
Process of ensuring that any information related to pending (or reasonably anticipated) litigation is identified and preserved without regard to usual document destruction policies or schedules.
Litigation hold
Occurs when management shuts down operations to prevent union employees from working.
Lockout
Contract clause that states that an employee may or may not choose to join the union but once the employee joins, he/she must maintain membership for the duration of the contract.
Maintenance of membership
Collective bargaining items required by law and the NLRB.
Mandatory subjects
Method of non-binding dispute resolving involving a third party who helps disputing parties reach a mutual agreeable decision; also known as conciliation
Mediation
Act that extended the policies of the Railway Labor Act to all interstate commerce organizations.
National Industrial Recovery Act
Act that protects the rights of employees to organize unhampered by management; also known as Wagner Act.
National Labor Relations Act (NLRA) of 1935
Agency that has authority to conduct union representation elections and investigate unfair labor practices.
National Labor Relations Board (NLRB)
Hiring of an employee who the employer knew or should have known, based on a reasonable pre-hire investigation of the employee’s background, posed a risk to others in the workplace.
Negligent hiring
Retention of employees who engage in misconduct both during and after working hours.
Negligent retention
Agreement between a union and an employer under which the employer agrees to remain neutral to (i.e.; not oppose) a union’s attempt to organize its workforce.
Neutrality / cooperation agreement
NLRB cases involving ULP’s during a union’s organizing drive that “chill” and organizing effort.
“Nip in the bud” cases
Contract stipulation in which the company agrees not to lock out workers during a labor dispute for the life of the contract.
No-lockout clause
Act that guarantees workers’ right to organize and restricts issuance of court injunctions against peaceful organized labor activities such as strikes, picketing, and boycotts.
Norris-LaGuardia Act of 1932
Contract stipulation in which union agrees not to strike during the duration of the contract.
No-strike clause
Workplace in which union membership (payments of dues) is not required for employee to continue employment beyond 30 days (seven days in the construction industry)
Open shop
Presentation of data to stimulate discussion of problem areas, generate potential solutions, and stimulate motivation for change.
Organizational feedback
Type of picketing done to induce employees to accept a union as their representative.
Organizational picketing
Takes place when unions negotiate provisions covering wages and other benefits similar to those already provided in other agreements existing within the industry or region, also known as parallel bargaining.
Pattern bargaining
Collective bargaining items that may be bargained but are not obligatory; also called voluntary or non-mandatory subjects.
Permissive subjects
Offers employees the opportunity to gradually reduce the number of hours they work before they are fully retired.
Phased retirement
Broad statement that reflects an organization’s philosophy, objectives, or standards concerning a particular set of management or employee activities.
Policy
Type of contract negotiation based on four premises:
- ) separate the people from the problem
- ) focus on interests, not positions
- ) invent options for mutual gain
- ) insist on objective criteria.
Principled negotiation
Type of contract negotiation in which people lock themselves into positions and find it difficult to move away, parties to be resolved, and emphasis is placed on winning the position.
Positional negotiation
Detailed, step-by-step description of the customary method of handling an activity.
Procedure
System of increasingly sever penalties for employee discipline.
Progressive discipline
Group of people who come together for a specific project.
Project team
Exception to doctrine of employment-at-will, holding that employees cannot be fired for fulfilling legal obligations or for exercising legal rights.
Public policy exception
Act that originally provided railroad employees the right to organize and bargain collectively; now covers both railroad and airline employees.
Railway Labor Act of 1926
When an employer recognizes a union as being entitled to conduct collective bargaining on behalf of workers in a particular bargaining unit.
Recognition
Picketing done to obtain an employer’s recognition of a union as bargaining representative.
Recognitional picketing
Device used by owner or contractor of a multi-employer work site to isolate pickets of one of these employers with whom a union has a primary dispute.
Reserved gate
Grants management full authority and discretion over the items that are or could be covered unless the contract limits management’s rights in a particular area.
Reserved rights doctrine
Refers to statues that prohibit unions from making union membership a condition of employment.
Right to work
Provision in a law or regulation that provides some measure of protection from liability if certain conditions are met.
Safe harbor
Process of using paid union organizers to infiltrate an organization and organize its workers.
Salting
When a union attempts to influence an employer by exerting pressure on another employer.
Secondary boycotts
Rights under NLRA that allow employees to engage or not engage in union activity.
Section 7 rights
When employer and union decide to assign specific bargaining issues to committees; proposals are then returned to entire group for decision.
Segmented bargaining
Group of people that works in a self-managing way typically assume complete autonomy.
Self-directed team
Act that curbed concentrations of power that interfered with trade and reduced economic competition; directed at large monopolistic employers but applied by courts to labor unions.
Sherman Anti-Trust Act of 1890
Extent to which a job requires a variety of different activities for successful completion.
Skill variety
The more skills involved, the more meaningful the work.
Practice in union-free organizations of encouraging managers to spend time with each employee two levels below them on an annual basis.
Skip-level interviews
Refusal by employees to work.
Strike
Strike by employees of a bargaining unit who refuse to cross picket lines made up of employees who are not members of their bargaining unit.
Sympathy strike
ct that provides balance of power between union and management by designing certain union activities as unfair labor practices; also known as Labor-Management Relations Act (LMRA)
Taft-Hartley Act of 1947
Temporary allocation of personnel and resources for the accomplishment of a specific objective.
Task force
Extent to which a job requires a “whole” identifiable unit of work - doing the job from start to finish with a visible outcome.
Task identity
ex. it is more meaningful to sew a whole pair of pants than to simply attach the pockets.
Extent to which a job has a substantial impact on other people.
Task significance
Job is more important if it’s more important to others. For instance, a firefighter may get more satisfaction from actually battling fires than from helping to train other firefighters.
Set of two or more people who are equally accountable for accomplishment of a purpose and specific performance goals.
Team
Working via computing and telecommunications equipment.
Telecommuting
Acronym used by many labor management attorneys and consultants that covers most of the unfair labor practice pitfalls a supervisor can run into.
TIPS - don’t Threaten, Interrogate, Promise, or Spy
Deals with employment contracts that contain covenants not to compete after termination of employment relationship and with the use of secret, confidential, or proprietary information that the employee obtained while working for the former employer.
Unfair competition
Violation of rights under labor-relations statues.
Unfair labor practice (ULP)
Formal labor organization that has the right to represent and bargain for a group of employees.
Union
Provisions in a collective bargaining agreement designed to protect the institutional authority or survival of the union (e.g., making union membership or payments of dues compulsory for all or some of the employees in a bargaining unit. )
Union security clause
Clause that states that when workers take jobs in a specific bargaining unit, they must join the union and pay union dues within a certain period of time.
Union shop
Act that protects the rights of employees to organize unhampered by management; also known as National Labor Relations Act (NLRA).
Wagner Act of 1935
Union employees’ right to have a union representative or coworker present during an investigatory interview.
Weingarten rights
Work stoppages involving the primary employer-employee relationship that are neither sanctioned nor stimulated by the union and that violate a no-strike clause in the contract.
Wildcat strikes
Reflects management decisions regarding specific actions to be taken or avoided in a given situation.
Work rule
Group of employees responsible for a given end product.
Work team
Contracts that force employee to agree not to join a union or participate in any union activity as a condition of employment.
Yellow-dog contracts
Contract stipulation in which both parties waive the right to demand bargaining on any matter not dealt with in the contract, whether or not it was contemplated when the contract was negotiated or signed.
Zipper clause
Purpose of N.L.R.A (Wagner Act)
Protect and encourage growth of union movement (collective bargaining)
Key sections in the N.L.R.A (Wagner’s Act)
- Section 7: Employee Rights
- Section 8: Employer Unfair Labor Practices (ULPs)
- Section 9: Election Procedures
- Section 10: Wright to Work State Laws
Labor Relations Milestones
- 1869 Knights of Labor organized
- 1886 American Federation of Labor(AFL) founded
- 1890 Sherman Anti-Trust Act
- 1914 Clayton Act
- 1926 Railway Labor Act
- 1932 Norris LaGuardia Act
- 1933 National Industrial Recover Act
- 1935 Wagner Act (NLRA) & Social Security Act
- 1947 Taft-Hartley Act
- 1948 SHRM
- 1950s Union membership peaks
- 1959 Landrum-Griffin Act (Labor-Management Reporting and Disclosure Act)
An act that provides some wage protection
Fair Labor Standard Act (FLSA) of 1938 (amended frequently)
An act that protects all applicants and employees from unlawful discrimination on account of race, color, religion, sex, or national origin.
The Civil Rights Act of 1964
This act extends protection against age-based discrimination.
The Age Discrimination in Employment Act (ADEA) of 1967
This act regulates workers safety issues.
Occupational Safety and Health Act of 1970
This act regulates retirement and certain welfare benefits.
Employee Retirement Income Security Act of 1974.
This act extended employment rights to federal workers.
Civil Service Reform Act of 1978
This act focuses on the employment rights of the disabled.
Americans with Disabilities Act (ADA0 of 1990
and
ADA Amendments Act (ADAAC) of 2009
This act defined employees’ rights to take unpaid leave.
Family and Medical Leave Act of 1993
This act protects various veterans’ reemployment rights.
Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994.
This act addressed portability of health benefits.
Health Insurance Portability and Accountability Act (HIPAA) of 1996
This act prohibits discrimination by health insurers and employers based on individuals’ genetic information.
The Genetic Information Nondiscrimination Act (GINA) of 2009
A Supreme Court case decision that that established separate public schools for black and white students illegal.
Brown v. Board of Education (1954), was a landmark United States Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896, which allowed state-sponsored segregation.
This act abolished wage disparity based on sex
Equal Pay Act of 1963
This act established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors.
Executive order 11246 of 1965.
This act prohibited sex discrimination on the basis of pregnancy.
Pregnancy Discrimination Act of 1978
Established standards for employers for the use of selection procedures and to address adverse impact, validation, and record-keeping requirements.
Uniform Guidelines on Employee Selection Procedures, 1978
Established criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment.
Guidelines on Sexual Harassment, 1980
Act that reformed US immigration Law
Immigration Reform and Control Act (1986) of 1986
This act requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.[1]
Drug-Free Workplace Act of 1988
This act prevents employers from using polygraph (lie detector) tests, either for pre-employment screening or during the course of employment, with certain exemptions.
Employee Polygraph Protection Act (EPPA) of 1988
This actprotects employees, their families, and communities by requiring most employers with 100 or more employees to provide 60 calendar-day advance notification of plant closings and mass layoffs of employees.
Worker Adjustment and Retraining Notification Act (WARN Act) of 1988
This act amended Employee Retirement Income Security Act of 1974. I
Retirement Equity Act of 1984
The Act gave more benefits to surviving spouses.
This act mandates an insurance program giving some employees the ability to continue health insurance coverage after leaving employment.
The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
Why employees join union.
- Lack of fairness or inconsistency in applying policies.
- Failure to recognize problems
- Lack of control /input on work issues
- Poor communication by management
- Poor performance at the supervisory level
- Perception of gross economic inequities
Employer trend influences
- Growth of foreign competition
- Emergence of a global economy
- Labor demographics and supply
- Manufacturing jobs decline
- Increasing cost of government compliance and regulation
- Explosive growth in employment litigation
Recent Union Trends
- AFL-CIO
- Change to Win
- More people join unions instead of going to college
- Competitive global marketplace
Trends in union organizing tactics.
- Aggressive organizing strategies
- New forms of union membership
- Recruiting of nontraditional members
- Expanded organizing in micro-units
Types of aggressive union organizing strategies.
- Mass mailing and telephone polling
- Media, internet and social media blitzes
- targeting employers with “corporate campaigns, neutrality agreements, and card-check pledges”
- Targeting specific locations and specific social groups
New forms of union memberships.
- “pre-union” groups
- associate membership
This type of union membership is set up in hopes to obtain initial employee commitment, with the hope that it will lead to the formation of a full-fledged campaign.
“pre-union group” membership
This type of union membership offers an employee only partial dues payments; often used with professional groups and public sector employees.
Associate membership.
Nontraditional union members.
- formerly nontraditional industries
- nontraditional work groups (white-collar, part-time, immigrants)
- Specific locations
What does it mean to expand union organizing tactics in micro-units?
- organizing across multiple locations
- organizing in just one job classification
This act was a countermeasure to the EFCA and it aimed to require secret-ballot elections to determine union representation in a workplace.
Secret Ballot Protection Act, 2011
This Act, would have made it easier for unions to achieve certification for a bargaining unit and obtain a collective bargaining agreement.
Employee Free Choice Act (EFCA), introduced in 2009. Not passed.
Key sections of N.L.R.A. (Wagner Act)
- Section 7: Employee Rights
- Section 8: Employer Unfair Labor Practices
- Section 9: Election Procedures
- Section 14: Right to Work State
Section 7 of the NLRA states that employees shall have the right to:
- self-organize
- form, join, or assist labor organizations
- bargain collectively through representative of their own choosing
- engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection
- refrain from any or all such activities
Section 8 of National Labor Relations Act of 1935 prohibits employers and unions from:
- interfering with
- restraining
- or coercing employees in the exercise of their Section 7 rights
Other provisions under NLRA.
- Objections to harassment
- Refusing to work under dangerous conditions
- Protected concerted activity, such as a picket line, refusing voluntary on-call work, filing grievances, protesting discrimination
- Filing for unemployment as a group
- Petitioning the employer for resolution of some issue
- The right to discuss with others the terms and conditions of their employment.
This law requires federal contractors, unionized or non-unionized, to post notices about their rights under NLRA, and to include provisions in their contracts that require their subcontractors to post the same employee notice
Executive Order 13496 of 2010
National Association of Manufacturers v. NLRB, 2013
In this case the District Court of Columbia Circuit struck down an NLRB rule that required all employers (not just federal contractors) covered by NLRA to post a similar to Executive Order 13496 notice.
Equal employment opportunities laws are examples of statutory laws. They derive from the following legislative acts:
- Title VII of the Civil Rights Act of 1964
- Fair Labor Standard Act of 1938
- Equal Pay Act (EPA) of 1963
- Age Discrimination in Employment Act (ADEA) of 1967
- Pregnancy Discrimination Act of 1978
- Titles I, II, and III of the Americans with Disabilities Act (ADA) of 1990
- ADA Amendments Act (ADAAA) of 2008
- Section 501 and 505 of the Rehabilitation Act of 1973
- Civil Rights Act of 1991
- Family and Medical Leave Act (FMLA) of 1993, 2008 amendments, 2009 regulations and 2012 FMLA final rules
- National Defense Authorization Act of 2010 (FMLA amendments)
- Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994
- Genetic Information Nondiscrimination Act (GINA) of 2008
- Lily Ledbetter Fair Pay Act of 2009
Criteria generally protected from discrimination under Federal laws:
- age
- sex
- race
- religion
- color
- disability
- military service
- national origin
Most important doctrine of common law.
Employment-at-will (EAW)
Exceptions to Employment-at-will
- Public policy (legal obligations)
- Express oral contract
- Implied contract
- Implied covenant
- Just cause
This exception to employment-at-will states that employees cannot be fired for fulfilling legal obligations or exercising their legal rights.
public policy exception
Examples of public policy exemption to employment-at-will.
- serving on jury duty
- filing for workers’ compensation
- refusing to commit perjury
- whistleblowing
- filing a complaint against the employer under Title VII
This exception to employment-at-will exists when an agreement is implied from circumstances even though there has been no express agreement between the employer and the employee.
Implied contract exception
This exception to employment-at-will doctrine involves a claim that a lack of good faith and fair dealing by the employer haas occurred.
Implied covenant of good faith and fair dealing
Example of implied covenant of good faith and fair dealing in the employment-at-will doctrine.
Firing an employee shortly after the employee becomes eligible for a retirement plan may indicate bad faith and may also be unlawful under federal pension laws.
The implied covenant of good faith and fair dealing exception to the EAW doctrine is rapidly changing. Few courts have been willing to recognize this doctrine because it implies that employees will ot be terminated without good cause, and this might eliminate the long-standing presumption of employment-at-will.
Key note on implied covenant of good faith and fair dealing.
How can employer avoid employer avoid employment-at-will lawsuits.
- avoid representing the job as “permanent”
- characterize the employer’s obligation with sufficient flexibility to avoid claims of an implied contract or breach of faith.
- Any detail about the future should be stated as a goal, not as a promise
- state in job application, offer of employer letters (if used), and employee handbooks that employment is at will
- state in the handbook that policies can be changed at any time by the employer
- Require employees to sign an acknowledgment that they have received the employee handbook, that the handbook is not a contract, and that employment is at will.
Types of Common-law torts claims that may include or at time violate individual employee rights.
- Employment-at-will
- Negligent hiring / negligent retention
- defamation
- fraudulent misrepresentation
- duty of loyalty (unfair competition)
- Invasion of privacy
A company that hires an employee who has a history of physical abuse of customers may e found liable for negligent hiring if that employee injures a customer.
This is an example of negligent retention.
To state a claim of negligence in hiring or retention, the following must ordinarily be shown.
- An employer-employee relationship or retention must exists
- The employee must be incompetent or inappropriate for the position
- The employer either knew or should have known of the incompetence or inappropriateness
- The employee’s act or omission must have caused the injuries
- With appropriate investigation, the employer could have discovered the relevant information and prevented the incident from occurring
A manager is jealous of f fellow employee who was recently promoted He spreads false rumors that the employee traded sexual favors for the promotion.
This is an example of defamation.
To prove defamation, a person must show evidence that
- A false and malicious statement was made to another person. (in the legal sense, “false” refers to making a statement known to be false or in some instance 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.
An employer makes a promise of job security to an applicant knowing that the employee’s job will be only temporary. Because of this promise, the applicant turns down job offers and takes the position, only to find out that there is no job security.
This is an example of fraudulent misrepresentation.
Four types of invasion-of-privacy claims exist under common law.
- Unreasonable intrusion upon the seclusion of another
- Appropriation of another’s name or likeness
- Unreasonable publicity given to another’s private life
- Publication that unreasonably places another in a false light before the public.
In order to deter theft and drug dealing, a company installs video cameras in an employee locker or dressing room.
This is an example of invasion-of-privacy.
An agreement between two or more persons to do, or refrain from doing, a particular thing in exchange for something of value.
Contract
What defines the promises of each party in a contract.
Contract can be written, using formal or informal terms, or they can be entirely oral. The terms of contract - the who, what, when, where, and how of the agreement - define the promises of each party.
If an employer tells a candidate in a interview that he or she will be promoted within one year and the candidate accepts the job based on that promise, this is an example of what?
Express oral contract.
If the existence of an express oral contract is proved by the employee, then the employer cannot claim an employment-at-will relationship.
This type of contract contain covenants not to compete that survive the termination of the employment relationship.
Unfair competition and noncompete agreement.
For a noncompete agreement to be enforceable, the employer must have some type of agreement with the employee that gives the employee something of value.
Under this doctrine, an employer could prevent an enmployee from taking a new position because the employee had knowledge that would inevitably be disclosed.
Inevitable disclosure
This Common-Law contract law requires that employees not engage in conduct adverse to employer’s best interests; competing with employer while still employed by it, soliciting coworkers away from the employer, diverting business away from the employer while still employed, or failing to disclose business conflicts of interest.
Employee’s duty of loyalty and confidentiality
HR involvement in the litigation process.
- Work with organization’s attorneys
- Attend depositions
- Attend meetings with agencies and plaintiffs
- Gather information
- Testify in hearings or at court
The litigation process steps
- Notification
- Answering complaint
- Scheduling conferences
- Discovery process
- Motion to dismiss
- Summary judgement
- Pretrial and trial
Two ways of notification in the litigation process.
- Sheriff or another process server delivers a copy of complaint.
- Plaintiff’s attorney or others mail a copy of the complaint along with a “waiver of service of process” form.
What occurs in the litigation process when the complaint is mailed?
If the complaint is mailed, HR or the company attorney needs to sign and return “waiver of service process”. By doing so, it increases the time permitted for a response (to 60 days from 20) it also avoids the complaint being personally served ad the company from incurring these costs.
HR role in the litigation hold process.
HR works with an attorney to develop and send out to all involved individuals a litigation hold letter that gives precise instructions for what material must be preserved (previous and new), how it should be preserved, and where it should be stored.
Things to remember when answering a complaint
- response must be filed within 20 or 60 days
- answer “admits or denies” the complaint
- raises an “affirmative defense” for defended
- “motion to dismiss” may also be filed in lieu of or in addition to an answer.
In this phase of answering a complaint, attorneys for both sides meet with the assigned judge and establish dates for getting the case to trial as well as the actual trial date.
Scheduling Conferences.
Most state courts do not hold scheduling conferences.
In this phase of answering a complaint, each party learns the facts about the other side’s case.
Discovery Process
this phase is generally quite expensive and time-consuming.
HR’s role in the Discovery Process
HR is typically responsible for gathering all relevant documents for the company legal counsel. Additionally, HR may be required (as company representative) to sign off on the interrogatory answers, attesting to their accuracy and truthfulness.
In the discovery process when the oral depositions of potential witnesses are scheduled?
After the written part of the discovery process is completed.
In this phase of answering a complaint, the defendant may request the court to stop its consideration of the case.
Motion to dismiss.
When there are to material facts in dispute, this requests the court to dismiss the case without a trial.
Summary judgment.
A sworn and written testimony supporting a motion.
Affidavit
In the employment lawsuit, how is the HR involved during the notification process?
- Notify counsel promptly and respond as directed
- Issue litigation hold letter
- Ensure that employees refrain from retaliation against the complainant
In the employment lawsuit, how is the HR involved during the answering complaint process?
- Supply organization’s legal counsel with plaintiff’s personnel files and any other related documents.
- Assist legal counsel in any investigation as requested
In the employment lawsuit, how is the HR involved during the scheduling conferences process?
- Advise attorney of time required for conducting internal investigation.
In the employment lawsuit, how is the HR involved during the discovery process process?
- Help organization’s legal counsel gather information in timely manner to prepare initial disclosures
- May sign off on interrogatory answers
- May need to provide deposition
- May attend plaintiff’s deposition
In the employment lawsuit, how is the HR involved during the motion to dismiss process?
Usually no HR involvement
In the employment lawsuit, how is the HR involved during the summary judgment process?
- May be requested to gather additional facts
- May be asked to sign affidavit
In the employment lawsuit, how is the HR involved during the pretrial and trial process?
- Support company legal counsel with final trial preparations and trial litigation
- Provide additional documentation as amy be required
- Help with scheduling of witnesses
Steps in the Employment Lawsuit process
- Notification
- Answering complaints
- Scheduling conferences
- Discovery process
- Motion to dismiss
- Summary judgment
- Pretrial and trial
Which of the following statement about common law is true:
a. ) It is a wrongful act, damage, or injury done willfully
b. ) It is enacted by legislation
c. ) Its basic principles are found in every society
d. ) it is based on a history of court decisions and customs
d.) it is based on a history of court decisions and customs
After three months on the job, an employee is fired without cause. This situation is an example of:
a. ) the disregard of reference checking by the employer
b. ) defamation
c. ) the violation of an implied contract
d. ) the common-law concept of employment at will
d.) the common-law concept of employment at will
A ten-year employee with a company was assured by the supervisor that the employee would always have a job. Three months later, the employee was called to jury duty and assigned to a trial that lasted six months. The employer hired somone to take over the job and was then unable to find the employee a suitable position after the trial. This situation may violate all of the following exceptions to the doctrine of employment-at-will EXCEP:
a. ) express oral contract
b. ) public policy
c. ) implied covenant of good faith and fair dealing
d. ) negligence
d.) negligence
The best way to avoid litigation over negligent hiring is to:
a. ) administer personality tests
b. ) check references
c. ) include a disclaimer in the employment contract
d. ) require a drug test
b.) check references
The common-law concept of defamation can be defined as:
injuring someone’s reputation in the community through slander or libel
When deciding between two jobs, an individual is told that the company will reimburse for graduate school, however after six months on the job his request for tuition reimbursement is denied. this is:
a. ) invasion of privacy
b. ) negligence
c. ) fraudulent misrepresentation
d. ) implied covenant
c.) fraudulent misrepresentation
Misrepresentation claims can be based on misstatement of material (i.e., significant) facts about the terms of the job offer, including the type of position, the salary, the job requirements, and other matters directly relating to the offer.
Which of the following statements about a noncompete agreement is true?
a. ) It prohibits employee from finding employment in the same field
b. ) It is valid only in the employee’s state or residence
c. ) It must be presented at the time of hire
d. ) It must contain a clause limiting the length of time the agreement will be in effect
d.) It must contain a clause limiting the length of time the agreement will be in effect
Which of the following actions could be perceived as retaliation for an employee’s complaint of discrimination?
a. ) A supervisor calls the employee into a private office and questions the employee closely about the complaint.
b. ) An attorney questions coworkers about the employee’s statements
c. ) Overtime for the entire department, including the employee, is reduced
d. ) The employee’s personnel records are provided to the organization’s attorney.
a.) A supervisor calls the employee into a private office and questions the employee closely about the complaint.
this may be viewed as coercion
HR role in Maintaining a Non-Union workplace
- clear position regarding unionization
- fair and consistent treatment of employees
- access to career opportunities
- balanced promotion decisions
- communication program and feedback mechanisms
- problem solving procedures
- counseling
- comparable compensation and benefits
- performance appraisal
- rewards and recognition
- management / supervisor training
Employee handbook that clearly articulates company position regarding unionization should outline the following items:
- the expense for employees of union and initiation fees
- the economic losses and uncertainties that accompany possible strikes
- policies and processes that are already in place to provide the kind of treatment unions promise to obtain in exchange for dues
- freedom to reward high-performing employees and panelize low-performers who clearly create more work for their fellow employees
- greater flexibility to adapt to market and technology changes. Employees can acquire new responsibilities without negotiating with the union.
- What organizing cards are and what the employee signifies by signing one
- How certification work
Knowledge
When possible, during a promotion decision making process, a mixed system that blends seniority and ability of individual is generally preferable to a non-mixed system.
Difference between job posting and job bidding
Under a job posting system, currently available positions are “posted” so interested and qualified employees may apply.
Job bidding allows individuals to express interest in future opportunities and openings.
Examples of feedback/communication mechanisms during strategizing for maintaining a union-free organization, may include:
- Attitude (climate) surveys
- Human resources / labor relations reviews
- Skip-level interviews
- Open door/ person-to-person meetings
- Department / unit communication meetings
- Employee participation programs (EPPs)
- Electronic communications
- Problem solving procedures
- Counseling
- Compensation and benefits programs and practices
- Performance appraisals
- Rewards and recognition
- Management / supervisor training
This method reduces the perception of “we/they” in the organization and facilities upward communication where it may not routinely happen. It also encourages management to resolve issues and employee problems promptly.
Skip-level interviews as a part of communication programs and feedback mechanisms
Key knowledge
Human resources / labor relations reviews as a part of communication programs and feedback mechanisms will be disclosed if requested during discovery phase in litigation process unless prepared under the direction of counsel for purposes of advising the employer about legal compliance.
This type of surveys ask employees to provide opinions on fair treatment, recognition and appreciation, quality of supervision, working conditions, job demands, job security, adequacy of communication, and satisfaction with compensation, benefits, and other conditions of employment.
Attitude (climate) surveys.
What is the greatest disadvantage of open-door / person-to-person meetings.
When soliciting feedback from employees without responding to it signals to employees a lack of genuine interest in employee concerns.
This type of feedback is often used as means of regular upward communication. Employees within a particular unit are asked to meet with the manager to discuss current developments and seek areas for improvement.
Department / unit communication meetings.
These have a common purpose of improving communication between employers and employees and empowering employees in some workplace decisions. They can create a loyal and committed workforce and can lead to substantially increased productivity and quality.
Employee participation programs (EPPs)
Since Section 8 of NLRA prohibits employers from dominating or interfering with a “labor organization” or with providing it financial or other forms of support, each Employee Participation Program (EPP) must be examined on its own, but there are few general rules.
- Members of EPPs must not represent other employees
- Programs must not be “bilateral” in nature or purpose (committee must not be working to generate proposals to management)
- Committee deliberations must avoid “traditional areas of bargaining”, such as compensation, hours, benefits, and reward systems.
- If there is a union representing the employees, management must at the very least “meet and confer” with the union over the design and implementation of the committees.
Guidelines on Effective Rewards / Recognition Programs
- Gather employee input
- Ensure that the rewards / recognition are appropriate to the value of employee contribution
- Develop clear criteria that are significant and achievable and communicate them to the entire workforce
- Train supervisors and managers how to administer the programs effectively, fairly, and consistently.
Labor - Management Cooperative Strategies
- Greater acceptance of partnerships
- Willingness to share powers
- Open and candid sharing of information
- Joint decision making on issues of common concern
- “win-win” bargaining
- Shared responsibility and accountability for results
Fundamentals of Labor- Management Cooperation
- understanding and cooperation about the mutual concern and trust
- recognize the challenge and eliminate “us-them” mentality
- have internal champions
- encourage open communication
- establish common ground rules
- set realistic expectations
- do not create new bureaucracy when eliminating an old one
- learn about other party’s position
- regularly assess progress
All of these factors support positive employee relations in nonunion organizations EXCEPT
a. ) skip-level interviews
b. ) strong employee commitment to organizational goals
c. ) new and improved company newsletter
d. ) use of sanctions to motivate desired behavior
d.) use of sanctions to motivate desired behavior
An entry-level employee express interest in applying for a possible Grade II position. This process is known as
a. ) job bidding
b. ) job posting
c. ) open-door communication
d. ) balanced promotion
a.) job bidding
Job bidding allows individuals to express interest in future opportunities and openings
Which of the following actions might be problematic and construed under the NLRA as dominating a labor organization?
a. ) Employer tells members of the committee that they are not representing other employees
b. ) The employer does not inform the committee members of their right to form a labor organization before the committee begins its work
c. ) The employer promises to work with the committee, to respond to committee proposals, and to develop mutually agreed solutions
d. ) The employer tells the committee members to avoid issues related to wages and benefits
c.) The employer promises to work with the committee, to respond to committee proposals, and to develop mutually agreed solutions
Labor-management cooperation is BEST supported by which action:
a. ) Preserving the traditional “us-them” environment
b. ) Promoting high expectations for success
c. ) Allowing committee members to defend their positions
d. ) Setting common goals on a united front
d.) Setting common goals on a united front
To recognize employee contribution, senior management decides to give an employee a $100 bonus for employee’s $500,000 cost saving idea. Why may this reward actin prove problematic?
The reward may not be aligned with the value of the suggestion to the company.
Participative management or empowerment, is also known as…
Employee involvement (EI)
Which of the following describes task identity?
a. ) The amount of clear information received about how well or how poorly a job has been performed
b. ) Extent to which the job requires a whole, identifiable unit of work
c. ) Extent of individual freedom and discretion in the work and its scheduling
d. ) Extent to which the job has a substantial impact on other people
b.) Extent to which the job requires a whole, identifiable unit of work
Which of the following job design practices broadens the scope of a job by expanding the number of different tasks to be performed?
a. ) Job enrichment
b. ) Division of labor
c. ) Job rotation
d. ) Job enlargement
d.) job enlargement
Job enrichment increases the depth of a job by adding responsibilities (also known as vertical integration)
Division of labor occurs when jobs are reduced to their smallest components so they can be completed quickly
Job rotation is a variation of job enlargement, breaks the monotony of routine jobs by shifting people between comparable but different jobs.
A disadvantage of flextime is that
a. ) utility cost may be higher because of longer operating hours
b. ) it provides more flexibility in handling uneven workloads
c. ) the total number of employees to compensate increases
d. ) one-day absences are reduced
a.) utility cost may be higher because of longer operating hours
Other disadvantages of flextime:
- Communication problems may increase if employees are unavailable
- Maintenance of attendance records
- Supervision for 12-15 hour days may be difficult
- possible overtime issues
Which of the following is an example of an alternate work schedule?
a. ) Job sharing
b. ) self-directed work teams
c. ) Job rotation
d. ) Task forces
a.) job sharing Other examples of alternate work schedules: - Flextime - Compressed workweeks - Regular part-time - phased retirement - Telecommuting
The significance of the Crown Cork NLRB decision is that it
a. ) discourages the use of project teams in unionized workplaces
b. ) strictly defines the use of incentives for employee creativity
c. ) allows some use of employee involvement committees
d. ) places strict guidelines on job definition
c.) allows some use of employee involvement committees
Which of the following employer committees would follow under a safe-harbor provision for employee participation programs?
a. ) Employees within a work area select respected employees to present employees’ ideas on increasing unit efficiency
b. ) A committee is organized to provide comments to management on the adequacy of the workplace safety procedures
c. ) Committee members poll fellow employees so that they can prioritize issue on workplace satisfaction in a report to management
d. ) A committee formed to improve attitudes meets with management to review its findings and develop final actions.
b.) A committee is organized to provide comments to management on the adequacy of the workplace safety procedures
When a committee may make proposals related to operational issues, such as safety and quality, but not to the terms or conditions of employment; this is called operational jurisdiction and is one of four “safe harbors” for the employer according to NLRB.
Gives employees the freedom and responsibility to make job-related decisions.
Employee involvement (EI) also known as participative management or empowerment.
Benefits of Employee Participation in the EI programs
- Fosters consensus decision making
- Fosters employee commitment to decisions
- Improves commitment to organizational goals objectives
- Provides greater team and organizational identity
- Produces better decisions
- Encourages self-training for work group members
- Improves quality of work life by meeting employee needs
- Provides a constructive orientation to employee criticism
Characteristics of Employee Involvement
key knowledge
Allowing employees to be involved in decisions that will affect their jobs empowers them. Empowered employees contribute more to the long-term health and prosperity of an organization than employees who simply do their jobs and don’t as questions or make suggestions.
HR role in Employee Involvement Programs
- Communicates company goals
- Develops and maintains EI programs
- Helps build trust in employees
- Ensures compliance with laws and regulations
List employee involvement strategies
- job design
- alternate work schedules
- teams (committees)
- employee suggestion systems
This type of Employee Involvement (EI) Program strategy is concerned with structuring jobs to improve organizational efficiency and employee satisfaction.
Job design
This scientist developed the concept of scientific management by designing jobs to get the greatest amount of work doen in the least amount of time.
Frederic W. Taylor
Frederic W. Taylor
Developed the concept of scientific management by designing jobs to get the greatest amount of work doen in the least amount of time.
- Division of labor
- Standardization
- Specialization
Scientific Management techniques
- Division of labor
- Standardization
- Specialization
Jobs are reduced to their smallest components because small components could be completed quickly. One person is assigned to complete each small component. Unskilled workers could perform the simple tasks.
Division of labor.
One of the scientific management techniques of Frederic W. Taylor.
Division of labor
Jobs are reduced to their smallest components because small components could be completed quickly. One person is assigned to complete each small component. Unskilled workers could perform the simple tasks.
Frederic W. Tayler
Through study, the most efficient way to do a particular job was determined and then uniformly instituted. The company benefited from efficiency, reduce training time and costs, and reduced wages because of the simplicity of the job.
Standardization
One of the scientific management techniques by Frederic W. Taylor
Standardization
Through study, the most efficient way to do a particular job was determined and then uniformly instituted. The company benefited from efficiency, reduce training time and costs, and reduced wages because of the simplicity of the job.
Frederic W. Taylor
As people repeatedly performed the same task, they become more proficient. The increase in the number of large organizations encouraged specialization.
Specialization
One of the scientific management techniques by Frederic W. Taylor.
Specialization
As people repeatedly performed the same task, they become more proficient. The increase in the number of large organizations encouraged specialization.
Frederick W. Taylor
Disadvantages of Frederic W. Taylor’s scientific management concept.
- decreased communication between departments
- decreased communication between employees who understand only their job/function
- boredom
- low sense of achievement could result to low employee morale
- complacency in safety
Advocates job design as a way to direct work groups towards the goals of the organization.
Industrial sociology
This study led to the discovery that individual behaviors are altered when workers are involved and management shows interest in their work.
Elton Mayo’s Hawthorne Studies or Hawthorne Effect
Elton Mayo’s Hawthorn Studies
Initially tried to link changes in employee productivity and employee environment, such as improved lighting.
The outcome of the study was the discovery that individual behaviors are altered when workers are involved and management shows interest in their work.
Systematic study of jobs to determine what activities and responsibilities they include.
Job Analysis
Core characteristics of job design
- task (assigned work activity)
- duty (composed of number of tasks and is a larger segment of work performed by one person)
- job responsibilities (obligation to perform certain tasks and duties)
Combination of tasks, duties and responsibilities.
Job
Task, duty and job responsibility.
job design
Core Characteristics of Job Design
- Skill variety
- Task identity
- Task significance
- Autonomy
- Feedback
Involves the extant of individual freedom and discretion in the work and its scheduling.
Autonomy
More autonomy leads to greater feeling of personal responsibility for the work. Allowing an employee to schedule the work to meet an established deadline gives the employee greater work satisfaction.
Autonomy
key knowledge
More autonomy leads to greater feeling of personal responsibility for the work. Allowing an employee to schedule the work to meet an established deadline gives the employee greater work satisfaction.
The amount of clear information received about how well or how poorly one’s job has been performed.
Feedback
Feedback leads to a better understanding of effective performance. Employees need to know what constitutes good performance and how their performance compares with these criteria.
Feedback
Key knowledge
Feedback leads to a better understanding of effective performance. Employees need to know what constitutes good performance and how their performance compares with these criteria.
A firefighter may get more satisfaction from actually battling fires than from helping to train other firefighters. this is an example of
Task significance
It is more meaningful to sew a whole pair of pats than to simply attach the pockets. This is an example of.
Task identity
Allowing an employee to schedule the work to meet an established deadline gives the employee greater work satisfaction. This is an example of:
Autonomy
Three critical psychological states related to beneficial work outcomes:
- Meaningfulness, (linked to skill variety, task identity, task significance)
- Responsibility (linked to autonomy)
- Knowledge of results (linked to feedback)
Job redesign strategies
- job enlargement
- Job rotation
- Job enrichment
This job redesign strategy attempts to relieve the boredom and low morale associated with excessive job simplification by expanding the number of different tasks to be performed.
Job enlargement
A secretary may be asked to not just distribute mail but to ope it and then route it to the appropriate person. This is an example of what type of job redesign strategy
Job enlargement.
Adding more similar operations to a job.
This type of job redesign strategy breaks the monotony of routine by shifting people between comparable but different jobs. Also referred to as horizontal integration.
Job rotation.
Job rotation is a variation of job enlargement.
A number of employees in a copy company could be trained to use the copier, assemble copied materials, and ship materials to their destination. This is an example of what type of job redesign strategy?
Job rotation. also known as horizontal integration.
Horizontal integration is also known as….
Job rotation.
Also known as vertical integration.
Job enrichment
A secretary may be asked to read and answer correspondence or indicate an appropriate plan of action. This is an example of what type of job redesign strategy?
Job enrichement
This type of job redesign strategy increases the depth of a job by adding responsibility for planning, organizing controlling, and evaluation.
Job enrichment
Job enrichment
key knowledge
Increasing job depth may result in improved employee morale; however, it may not lead to increased productivity.
Alternate work schedules:
- Flextime
- Compressed workweeks
- Regular part-time
- Job sharing
- Phased retirement
- Telecommuting
Flextime
key knowledge
Flextime does not vary day by day at the employee’s discretion.
An organization may require an eight-hour day but let employees start between 7:00 am and 9:30 am and end between 4:00 pm and 6:30 pm. (assuming 1 hour lunch period).
This is an example of what type of alternate work schedule?
Flextime
An organization may require an eight-hour day but let employees start between 7:00 am and 9:30 am and end between 4:00 pm and 6:30 pm. (assuming 1 hour lunch period).
What is the bandwidth time?
What is the core time?
Bandwidth time (the time during which hours may be scheduled) would be 7:00 am - 6:30 pm
Core time (when every one is present) would be 9:30 am - 4:00 pm
Advantages of flextime work schedule
- reduces absenteeism
- balances work and personal time
- reduces traffic congestion and stressful commutes
- provides flexibility in handling uneven workloads
- allows for better customer service if the company increases operating hours
Disadvantages of flextime work schedule.
- Communication problems may increase if employees are unavailable
- Maintenance of attendance records can become a problem
- Extended Supervision needed
- Overtime pay issues must be monitored
- Utility costs may be higher because of longer operating hours.
Advantages of compressed workweek schedule.
- Greater flexibility in staffing
- longer job coverage
- accommodates the leisure-time activities for employees
- accommodates employee life obligations (medical appointments, etc)
- improves employee job satisfaction and morale
- reduces absenteeism
- reduces facilitation of recruitment
Disadvantages of compressed workweek schedule.
- may increase overtime pay
- may increase the amount of stress on managers
Regular part-time
key knowledge
According to the IRS, if part-time employees work at least 1,000 hours, employers are legally required to include them in most retirement plans.
Patient Protection and Affordable Care Act of 2014 (PPACA)
Will require that employers with 50 or more full-time employees or a combination of full-time and part-time employees that is equivalent to at least 50 full-time employees must offer all employees working an average of 30 hours per week or more in a month health-care coverage with “minimum value” or pay penalties.
Advantages of job sharing.
- creates overlapping and allows face-to-face conferences
- may also be used as a strategy to limit layoffs in difficult times
Advantages of phased retirement alternate work schedule
- can help organizations manager workforce supply challenges
- serves as a way to transfer knowledge and experience in a controlled fashion from one generation of workers to the next.
Advantages of telecommuting
- More flexible work hours
- More effective use of time
- Lower costs because of reduced travel
- Help in overcoming the liability of undesirable geographic work location
- Lower real estate costs
- Reduced turnover
Disadvantages of telecommuting
- feeling of isolation, expendability, and alienation
- worker’s compensation coverage is not as straightforward
- compliance with FLSA
- Ergonomics and safety standards
- Equipment purchases
- Potential technology problem
- Confidentiality of the information
- Managers and supervisors training
Types of teams found in the workplace:
- Committees
- Project Teams
- Self-directed teams
- Task force
- Work teams
Team
Key knowledge
Teams and better job design are often combined to increase productivity and employee satisfaction.
Difference between a committee and task force.
A committee has an ongoing charter
Task forces ave a finite duration
List four “safe Harbors” for employers using employee participation programs (EPPs).
- Performance of a management function
- Brainstorming
- A suggestion box
- Operational jurisdiction
The employer has the ability to overturn committee’s decision; This is an example of what type of safe harbor exception?
Performance of a management function
This safe harbor exception applies to programs that are formed to present to management a broad-range of ideas.
Brainstorming
A committee may organize suggestions from all employees, removing irrelevant or impractical ideas and organizing suggestions for greater clarity. This is an example of what type of safe harbor exception?
A suggestion box
A committee may make proposals related to operational issues, such as safety and quality, but not to terms or conditions of employment. This is an example of what type of safe harbor exception
Operational jurisdiction.
To minimize the risk of violating the NLRA through the use of EPPs employers should follow these guidelines;
key knowledge
- Do not establish committees in response to union-organizing activity
- Do not allow employees to select representatives
- Committee members should speak for themselves only
- Do not allow EPP members to represent employees as a whole
- Do not confer voting or approval authority to managers/sups.
- Do not allow EPPs to present any proposals based on polls, votes, or consensus.
A creative team at an ad agency hires its own members and has the authority to manage client relationships. They create production schedules and are responsible for meeting budgets and deadlines.
This is an example of what type of team structure?
Self-directed team
A vacuum cleaner company forms a team to research and design a series of accessories for its premier product.
this is an example of what type of team structure?
Project team
In this NLRB decision it has been found that the committees were labor organizations since they were supported and dominated by the employer.
1992 Electromation
In this NLRB’s decision, it was found that there is a managerial or supervisory character to some employee committees that make them acceptable under the NLRA.
2001 Crown Cork and Seal
In this NLRB’s decision, NLRB further defined the relationship between employee committees and labor organizations in a case involving an employee complaint panel, where the purpose of the panel was to improve group decisions.
2007 Syracuse University
A company appoints from among its employees this type of team to explore health-care options and find ways to reduce or contain helth-care costs.
Task force
What is the difference between a task force and a project team?
Project tams have more defined boundaries.
Task forces have a mission to tackle more long-term strategic issues.
Types of work teams:
- Functional work team
- Cross-functional work team
In this type of work team, employees from a particular function, (such as HR or accounting), pool resources to serve various client groups
Functional work group.
This type of work team is made up of employees from different functions and may have overall responsibility for a particular customer, line of business, or process.
Cross-functional work team.
Work team
key knowledge
Participation in a work team is a non-voluntary, permanent in nature and NOT a temporary assignment or an addition to normal duties.
A cross-functional team responsible for implementing new Environmental Protection Agency guidelines for the handling of a hazardous chemicals in the workplace.
This is an example of what type of team?
Work team
Employee Suggestions Programs Requires
key knowledge
- Top management support
- Clearly defined objectives
- Easy access by employees
- Simplicity
- Low risk and/or anonymity
- Minimal program administration
- Prompt and timely acknowledgement and administration
Two categories of employee surveys.
- Employee attitude survey (level of job satisfaction)
- Employee opinion survey (important data on specific issue)
Survey benefits
- provide a direct means of assessing employee attitudes
- signaling to employees that their views are considered important
- if results are acted upon - increase levels of employee trust
- improve the satisfaction levels of customers
- detect early signs of workforce problems
Employee attitude surveys serve which of the following functions?
a. ) Productivity improvement tool
b. ) Job satisfaction improvement
c. ) Intervention tool
d. ) Supervisory feedback tool
b.) Job satisfaction tool
When conducting evaluative research, the HR professional should.
a. ) ignore extraneous factors
b. ) keep to the scheduled time line
c. ) establish base-line points against which changes can be compared
d. ) monitor employee behavior
c.) establish base-line points against which changes can be compared
Survey topics
key knowledge
- Management quality
- Organizational business strategy and direction
- Quality of work / life issues (work-Life balance)
- Employee morale and job satisfaction
- Customer focus
- Effectiveness of compensation and benefit programs
- Perceptions of HR effectiveness
- Employee development opportunities
- Employee retention and attrition issues
- Workplace safety and health concerns
Survey design
key knowledge
- Employee attitude surveys may be designed or purchased
- Real value in attitude surveys is in measuring improvements over regular time periods
- Opinion surveys, by nature, are almost always internal initiatives
Advantages of online employee surveys
- Higher response rate due to access convenience
- No survey being “lost in mail”
- Increased and /or improved responses to open-ended questions
- Quicker results
- Current up-to-date viewing
- Eliminate interviewer biases
- Ease and flexibility in analyzing data
Disadvantages of online employee surveys
- Computer access / computer literacy
- Accurate email addresses
- Pilot testing is poor
- Responses “space” requirements
- Viruses
- Server security
Special considerations on surveys
key knowledge
- Employees need to be aware of the purpose of the survey
- Employees need to be guaranteed anonymity
- Employee should be given feedback on the results
- Employee will generally be brutally honest
- Certain concerns (pay, cafeteria food) will always be critical
- HR department often scrutinized and criticized
- Translation may be required for open-ended responses
Employee focus groups special considerations
key knowledge
- avoid distractions
- provide breaks and refreshments
- define objectives
- select an experienced facilitator
- make participant selection random and voluntary
- take notes
Advantages of focus groups
- Provide a format that is flexible /comfortable for discussion
- Faster and less costly to complete than surveys
- Allow for group brainstorming, decision making and prioritization
- Can provide group consensus
- Enables HR to learn about employee needs, attitudes, and opinion
- Gives employees direct input
Disadvantages of Focus Group
- “Group think” conformity; influenced by what others think
- May be difficult to control; participants may go off on tangents
- Time and number of participants constraints
- Skewed or biased results if participants are not representative
- Pose a risk of violating the NLRA
Common errors in interpreting data of survey/focus group responses.
- “rush to conclusion” syndrome
- Graphical misrepresentation
- Statistical analysis errors
- “analysis paralysis” (overanalyzing)
- Manipulated results (external pressure to arrive at certain findings)
How to avoid “rush to conclusion” syndrome when interpreting data of a survey / focus group
Try to refrain from drawing conclusions early in the analysis
How to avoid graphical misrepresentation error when interpreting data of a survey / focus group
Check graphs, charts, or tabes for accuracy. Redo calculations and formulas that were used to condense data.
How to avoid statistical analysis error when interpreting data of a survey / focus group
It is best to replicate the original procedures
How to avoid “analysis paralysis” error when interpreting data of a survey / focus group
Replicate all tests on the data to be sure that results are consistent.
Do not overanalyze the less significant data.
How to avoid manipulated results error when interpreting data of a survey / focus group
Report the findings intact.
Organizational feedback is the systematic presentation of data to groups with the intent to :
- stimulate discussion of problem areas
- generate potential solutions
- stimulate motivation for change
What two groups should the organizational feedback be provided to?
- Management
- Employees
Ways to improve employee assessment
key knowledge
- Secure management support
- Clear objectives
- choose appropriate sample
- ensure anonymity
- consider the organizational climate
- share results with management and employees
- don’t ask what you already know/don’t ask if you don’t want to know
- consider using multiple methods
- pilot test all instruments
- translate the materials
- act upon the results
What is the most critical point of employee surveys / focus groups?
act on the results and show the employees that their opinions matter.
HR Coordination of Policies, Procedures, and Work Rules.
Key Knowledge
- HR provides formal advice in the development of workplace policies, procedures, and work rules and the mechanism for coordinating them.
- HR explains/trains managers in workplace policies, procedures, and work rules
- Managers explain workplace policies, procedures, and work rules to all employees.
- HR reviews disciplinary situations and support management and employees to ensure fairness and consistency.
HR’s role in Policies, Procedures, and Work Rules.
- NOT necessarily to develop workplace policies / procedures
- Supports the development of policies by the organization by applying values to employment issues and determine policy positions
- Facilitates development of procedures by other departments
- Support communication of P,P, and WR. (clear understanding and interpretation of the PP and WR by employees)
Employee Handbook Guidelines
- Be mindful of tone
- Ensure alignment with the organization’s culture and values
- Keep it simple
- Keep it current
- Distinguish between organizational policies and job specifics
- Accommodate multilingual requirements
- Obtain evidence of receipt of the handbook
- Pay attention to the look
- Be cognizant of legal obligations and possible interpretations
Employee Handbook Guidelines
Key Knowledge
Courts have repeatedly ruled that, while an employee handbook can satisfy legal notice requirements, it can also, depending upon the circumstances:
- Create an employment contract that creates an exception to the employment-at-will doctrine and limits an 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 and constitute a Section 8 violation
Employee Handbook Guidelines - Beware of Section 7 Right
Key Knowledge
- don’t have language which may appear to restrict employee’s rights under the NLRA
- Employment-at-will statements where there is a Collective Bargaining Agreement, may be null a void due to Contract language on disciplining and termination process
- Contract language supersedes general employer rules, policies, and procedures
- avoid electronic communication policies that might be construed as “chilling” by NLRB
In this NLRB case, the company was ordered to revise its handbook to remove language that could violate employees’ Section 7 right. The definition of confidentiality in the handbook was seen as overly broad.
Cintas v. NLRB, 2007
According to NLRB Acting General Counsel certain policy language re: social media was problematic and would be considered unlawfully restricting employees’ rights.
Key Knowledge
- vaguely prohibiting posts discussing employer’s confidential info
- discussing workplace dissatisfaction
- posting notices with offensive, demeaning, or inappropriate remarks
- Prohibit employees from contacting governmental agencies
- posting personal information
- threatening discipline for use of Social media
“Do include”recommendations for an Employee Handbook
key knowledge
- note that the handbook is not “all inclusive”
- general policies and practices that apply to all employees
- a statement that employment is at will
- a union-free statement
- statement that this version supersedes any previous versions
- note that the handbook may be changed by employer at any time
- provide copy to all employees
- have it legally reviewed
- language including for Section 7 rights
- get a signed acknowledgement of receipt form each employee
“Don’t” - Employee handbook
key knowledge
- Don’t make any promises that cannot be kept
- Don’t create a contract, express or implied
- Don’t guarantee employment for any definite period of time
- Don’t publish procedures you don’t follow or can’t enforce
- Don’t include any statements that someone may construe as discriminatory
- Don’t make promises of severance pay upon termination
Workplace dress code for casual days is generally an example of a:
a. ) policy
b. ) procedure
c. ) work rule
d. ) collective bargaining item
a.) policy
Which of the following best exemplifies a work rule?
a. ) Training employees to scan all email attachments for viruses
b. ) terms of paid sick leave for nonexempt employees
c. ) method for authorizing departmental vacations
d. ) Prohibiting employees from drinking alcohol on the job
d.) Prohibiting employees from drinking alcohol on the job
It is a good idea to regularly update an employee handbook because.
a. ) job specifications must be modified
b. ) laws, regulations, and interpretive court decisions may change
c. ) discussion of job security legally needs to be translated
d. ) termination reasons need to be revised to settlements reached in just-cause disputes
b.) laws, regulations, and interpretive court decisions may change
An organization’s handbook may create the appearance of “chilling” employees’ rights to engage in concerted activities by
a. ) referring to union authorization cards
b. ) including a statement that the organization desires to remain union-free
c. ) broadly warning employees against harassment in the workplace
d. ) making prohibitions that cannot be enforced consistently
c.) broadly warning employees against harassment in the workplace
An employee physically attacks another employee in a break room. The employer investigates the incident with witnesses and fires the violent employee without hearing or the usual discipline process. This is an example of
a. ) termination with due process
b. ) termination because of a summary offense
c. ) termination as a result of a non-summary offense
d. ) wrongful termination of an at-will employee
b.) termination because of a summary offense
A customer service representative is reported by a customer as having been rude during a recent call. The representative’s supervisor checks the audio recording of the call, confirms the complaint, and meets with teh representative to discuss the event.
The supervisor says, “i’d like to understand better what happened and why you might have reacted this way. Then we can find a way to work on this and try to prevent it from happening again.” This scenerio is most likely an example of:
non-punitive discipline.
The employer finds it unnecessary to publish explicit work rules. An employee is told about an infraction of not wearing proper uniform. During a meeting with manager, the employee explains that the uniform is uncomfortably tight and inhibits the employee’s ability to lift patients. the employee is suspended for one day without pay. The employee protest that she has not received due process. What part of due process was violated here?
a. ) The requirement is unreasonable
b. ) The penalty was inconsistently applied
c. ) The employee was not given an opportunity to defend herself
d. ) The employee was not informed of the requirement
d.) The employee was not informed of the requirement
Progressive discipline is best described as a system that
a. ) is based on feedback from peers
b. ) imposes increasingly severe penalties for each violation
c. ) is based on the alternative dispute resolution process
d. ) improves two-way communication between manager and subordinate
b.) imposes increasingly severe penalties for each violation
Companies prefer to use alternative dispute resolution (ADR) because
a. ) it helps companies maintain their nonunion status
b. ) requires little training to institute the process
c. ) reduces the number of disputes that end up in court
d. ) keeps salaries competitive
c.) reduces the number of disputes that end up in court
Which of the following ADR options can be a binding resolution?
a. ) Ombudsperson
b. ) Mediation
c. ) Arbitration
d. ) fact finding
c. ) Arbitration
The most common reasons for disciplinary action are:
- poor performance
- substance abuse
- breaking policies, procedures, or rules (absenteeism or tardiness, Insubordination, safety and health issues, falsifying company information)
- serious misconduct
Benefits of effective discipline practices
- Transmits rules of the organization
- sets an example of appropriate behavior
- corrects errant behavior
- promotes fairness
- preserve respect
- supports employment termination
Refers to time lost when employees do not come to work as scheduled.
Absenteeism
A fact that may be considered i absenteeism, refers to time lost when employees report to work late or do not return from a break within a specific time.
Tardiness
Benefits of effective efforts in attendance management:
- generate substantial savings
- increased productivity
- increased morale
How does the cost of absenteeism affect decrease in productivity?
- employees must take on additional work
- employees must train new or replacement workers
- staff morale and customer service may suffer
How does the cost of absenteeism affect company financially?
- overtime payment may be necessary
- cost of replacement employees
- premium costs for insurance may rise
How does the cost of absenteeism increases administrative costs?
- staffing time to find replacement workers
- management time to reassign staff
- staff time necessary to monitor absenteeism
- staff time spent in disciplinary process
Bureau of National Affairs’ formula for calculating absenteeism and tardiness.
Worker days lost in month through absence
/ (divided)
Avg. number of employees x number of workers per month
Excessive absenteeism and tardiness.
Key Knowledge
Note that in taking disciplinary action for excessive absenteeism and/or tardiness, employer must be careful to count absences protected by federal, state, or local law. This would include, for example, absences:
- covered by USERRA for military leave
- Covered by the FMLA
- For medical, family, school, or voting leave covered by some state laws.
Disciplinary Actions
Key Knowledge
- Discipline comes from the Greek word “disciple” or “to teach”
- Emphasis should be “corrective” rather than “punitive”
- The hardest task supervisors perform
- Should be done quickly, fairly, and consistently
Not proceeded by any usual “warning steps” in the discipline process. If the employee is found, after investigation and hearing, to have committed the offense, the employee is subject to immediate termination or sanction.
A summary offense
Seven Basic Tests of Due Process in disciplining employees
- An employee is informed of the employer’s expectations and the process consequences attached to failure to meet those expectations
- The employer’s disciplinary actions are consistent and predictable
- The employer’s decision is based on factual evidence
- The employee has a right to question the evidence and defend himself or herself
- The employee has a right to appeal the disciplinary decision
- A progressive discipline process is used
- The employee is considered as an individual
Discipline and Organizational Culture basic issues.
- What is the ultimate goal of discipline.
- Is the discipline punitive or non-punitive (corrective)
- If and how are employees involved in the disciplinary process
- The use of Alternative Dispute Resolution System (ADR)
What is the initial goal of an effective disciplinary system?
to avoid having to discipline employee in the first place.
Four Preventive Measures to minimize the need for discipline.
- Set clear expectations
- Have written policies, procedures, and work rules
- Establish a climate of communication
- Maintain an open-door policy and practice
Both punitive and non-punitive systems can be progressive.
true or false
true
Punitive progressive discipline systems are more or less common than the non-punitive ones?
more common.
Three common aspects to be considered in a progressive discipline structure/policy:
- the number of steps before termination (usually between 3-5)
- The length of the time window for each step in the process
- The nature of the second offense (whether the second violation is the same, similar, or different from the first infraction)
Progressive disciplinary action sequence.
- Problem solving session and open dialog
- Warning
- Second Warning
- Final Written Warning
- Discharge or termination
This is the mildest step of disciplinary action and can increase understanding among everyone involved, reduce workplace tension, and open up communication.
Problem solving session and open dialog
This is the second step of progressive discipline process when it occurs within the specified amount of time; accompanied by a formal letter.
Warning
This step represents a failure of progressive disciplinary process and is an employer’s last resort; used for repeated occurrences or sever violations.
Discharge or termination
HR “Dos” in Disciplinary Termination
Key Knowledge
- Never summarily discharge
- Investigate thoroughly, promptly and get the facts, well document
- Conduct all employee interviews
- Conduct a “final filter” for review
- Pinpoint the basis for discharge
- Inform the employee of the reasons for the decision
- Follow disciplinary procedures
- Terminate when appropriate
- Watch for “red flags” and involve legal counsel
Alternative Dispute Resolution (ADR) Options
- Open-door policy
- Ombudsperson
- Single designated officer
- chosen officer
- peer review
- mediation
- arbitration
In this type of ADR option disputes are submitted to one or more impartial persons who listen to both sides and then make fianl determination.
Arbitration
This type of ADR option uses a neutral third person trained in techniques to help both sides assess the strengths and weaknesses to their positions. The goal is to negotiate a mutually acceptable, voluntary settlement. The third party acts more as a facilitator of agreement than as a judge making a decision. Settlement cannot be imposed on either side.
Mediation
This type of ADR option establishes a panel of employees (or employees and managers) trained to work together to hear and resolve employee complaints. The panel may be led by an HR professional. It may not change company policy but sometimes may recommend changes to policy. It is sometimes limited to suspensions and discharges.
Peer review
This type of ADR option permits the employee to select an arbitrator from a group of individuals. This allows employee to feel some control over their future.
Chosen officer
This ADR option identifies a specific individual chosen by senior management to conduct investigations and dispute resolution. The credibility of this individual may depend on the credibility of management.
Single designated officer
This type of ADR option designates a neutral third party (from either inside or outside the company) to investigate employee complaints confidentially and help mediate disputes. This third party may draw an opinion and may bring the dispute before management but is usually not empowered to settle grievances. This third party may advance unresolved disputes to other forms of ADR.
Ombudsperson
This type of ADR option encourages employees to meet with an immediate supervisor or manager to discuss workplace problems; it allows employees to approach anyone in the chain of commend. It might be seen as preemptive or preventive ADR.
Open-door policy
In this U.S. Supreme Court case, The Court held that a provision in a pre-hire employment application requiring that all employment disputes be settled by arbitration was enforceable under the Federal Arbitration Act (FAA).
Circuit City Stores v. Adams (2000)
In this U.S. Supreme Court case The Court ruled that even if there is a mandatory arbitration agreement, the relevant civil rights agency can still sue on behalf of the employee.
EEOC v. Waffle House (2002)
In this U.S. Supreme Court case, The Court ruled that some state statues may be preempted by the Federal Arbitration Act; the arbitration agreement that prohibits class actions and required the resolution of all disputes individually by an arbitrator was enforceable under the FAA, preempting a stat’s law to the contrary.
AT&T Mobility v. Concepcion (2011)
Court’s rulings re: Arbitration Agreements
Key Knowledge
- Arbitration procedures must be fair and must not change the remedies that would be available in court
- Requiring an employee to pay for part of the cost of the arbitrator may result in the agreement’s uenforceability
- it remains undecided whether an arbitration agreement would be enforceable to prevent an employee’s participation in a class action brought under a federal statue, (such as FLSA)
In this case, the U.S. Supreme Court by refusing to review, held a decision that unreasonable cost apportionment (podzial) provision was severable from the balance of an arbitration agreement. This meant that, although the cost apportionment provision was unenforceable, the agreement to arbitrate could be enforced over the objections of the employee.
Kepas v. Ebay
In this court ruling, the Court disagreed with NLRB’s decision that requiring employees to agree to a class action waiver as a term and condition of employment violates Section 7 of the National Labor Relations Act.
D.R. Horton, Inc. v. NLRB
Equal Employment Opportunity Commission (EEOC)
Key knowledge
- Agency responsible for enforcing anti-discrimination laws
- Plaintiff (or Complainant ) files complaint/ charge against an employer (or Respondent)
- charges must be filed within 180 or 300 days of the alleged discrimination
- EEOC prioritizes complaints: A (high priority), B (maybe), C (low probability)
EEOC complaint process
- EEO complaint filed
- EEOC notifies employer of complaint via a letter
- EEOC sends employer a copy of the charge
- EEOC reviews charges and assess “reasonable cause”
EEOC complaint process, if reasonable cause is found
- EEOC attempts conciliation
- Employer required to provide remedies to settle
- Charge is settled or may go to litigation with EEOC or private court
EEOC complaint process, if the EEOC does not make a determination on assessing “reasonable cause”
- The employee has the right to request a right-to-sue letter after 180 days
- Complainant must file suit in federal court within 90 days
EEOC complaint process, if reasonable cause if not found
- EEOC notifies both parties
- Complainant is notified of right to sue
- EEOC involvement ends
- Complainant may sue in court
The Railway Labor Act covers which employees?
Railroad employees and airline employees
Which of the following statements about the Norris-LaGuardia Act of 1932 is true?
a) It guaranteed the employer’s rights to issue injunctions against union activities
b. ) It prevented union members from participating in strikes picketing, and boycotting
c. ) It made yellow-dog contract not enforceable in federal courts
d. ) it required employers to bargain in good faith with employees
c.) It made yellow-dog contract not enforceable in federal courts
The term “closed shop” refers to
an employer who requires employees to be union members at the time of hiring
Before the NLRB will order an election, what percentages of the eligible employees must sign authorization cards?
30%
In determining if a proposed bargaining unit is appropriate, the NLRB will consider whether the
a. ) proposed unit is the best unit to represent workers
b. ) employees have sufficient common interests
c. ) union has a reputation for fairness
d. ) size of the union will affect its ability to bargain efficiently
b.) employees have sufficient common interests
Which of the following are customarily excluded from a bargaining unit?
a. ) Supervisory employees
b. ) Government employees
c. ) Part-time employees
d. ) Seasonal employees
a.) Supervisory employees
A consent election agreement occurs when
a. ) union and the employer disagree on voter eligibility requirements
b. ) issue of union recognition is the only outstanding dispute
c. ) employer and union disagree on composition of the bargaining unit
d. ) representation question concerning interstate commerce becomes an issue
b.) the issue of union recognition is the only outstanding dispute
The first step the employees must take to remove the union as their bargaining agent is to
request a decertification election
The First Act to declare illegal, every contract, combination, or conspiracy in restrain of trade or competition.
Designed to prevent monopolistic practices of employers, especially injunctions.
Sherman Anti-Trust Act (1890)
This 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 legal basis for injunctions against union organizations.
Clayton Act (1914)
This Act stated: “Nothing in anti-trust laws shall be construed to forbid the existence and operation of labor organizations nor shall such organizations… be held or construed to be illegal combinations or conspiracies in restrain of trade.”
Clayton Act (1914)
An arrangements in which a seller of one good requires buyer to purchase other goods as well.
Tying contracts
The situation that occurs when a producer prohibits customers from purchasing from other sellers.
Exclusive dealing
An arrangement whereby one individual serves on the board of directors of competing firms.
Interlocking directorate
This Act regulates: price discrimination, tying contracts, exclusive dealing, interlocking directorate, mergers and acquisitions that lessen competition.
Clayton Act (1914)
This Act was passed to reduce labor conflict and the possibility of transportation strikes.
Railway Labor Act (1926)
This Act represented a complete change in the government’s approach to union by providing railroad employees the right to organize and bargain collectively through representatives of their own choosing.
Railway Labor Act (1926)
This Act limited federal court intervention in labor disputes by restricting use of court injunctions.
Norris-LaGuardia Act (1932)
This Act made “yellow-dog contracts” illegal.
Norris-LaGuardia Act (1932)
In this case, court have issued injunctions aimed at enforcing mandatory arbitration clauses in collective bargaining agreement, basically prohibiting a strike where the union had committed in a collective bargaining agreement to have the dispute resolved by arbitration.
Boys Market v. Retail Clerks Local 770
This Act grew from depression era. it extended Railway Labor Act to all interstate commerce organizations.
National Industrial Recovery Act (1933)
This Act provided for elections to select collective bargaining representatives and guaranteed “right to organize and bargain collectively”
Declared unconstitutional in 1935.
National Industrial Recovery Act (1933)
Also known as Wagner Act
National Labor Relations Act (1935)
This Act was passed to protect and encourage the growth of the union movement. It guaranteed workers the right to organize themselves; to form, join, or assist labor organizations; to bargain collectively, and to engage in concerted activity for mutual aid and protection. It required employers to bargain with a union in good faith.
National Labor Relations Act (1935)
This Act established National Labor Relations Board (NLRB)
National Labor Relations Act (1935)
Also known as Taft-Hartley Act
Labor-Management Relations Act LMRA (1947)
This Act was an amendment to NLRA.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act attempted to establish a balance of power between unions and management by designing certain union activities as unfair labor practices.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act guaranteed employers their right to free speech, so long as statements did not contain threats of reprisal or promises of benefits.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act allowed employers to file unfair labor practices charges against unions.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act outlawed “sweetheart contracts”.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act allowed employees to refrain from union activities; and mandated that unions represent all employees in the bargaining unit.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act outlawed “closed shops” , except in the construction industry.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act prohibited the deduction of union dues without employee’s written consent.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act established provisions for “national emergency strikes” that threaten public welfare. The President can order an 80-day cooling off period.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act (Section 14-B) permitted right-to-work states to enact statues against compulsory union membership (union shops, where the employer agrees to require union membership as a condition of employment, after completion of a probationary period.)
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act established the Federal Mediation and Conciliation Services (FMCS), to offer assistance in contract settlement and to maintain a list of arbitrators to help interpret contract language and resolve disputes.
Labor-Management Relations Act LMRA (1947) also known as Taft-Hartley Act
This Act intended to protect employees from corrupt or discriminatory labor unions.
Labor-Management Reporting and Disclosure Act (1959) also known as Landrum-Griffin Act
This Act contained 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 speak in union matters, and the right to sue the union.
Labor-Management Reporting and Disclosure Act (1959) also known as Landrum-Griffin Act
This Act contained 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)
Labor-Management Reporting and Disclosure Act (1959) also known as Landrum-Griffin Act
This Act contained 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 and experience when making hiring decisions.
Labor-Management Reporting and Disclosure Act (1959) also known as Landrum-Griffin Act
This Act established union financial requirements that obligates union officers to report certain financial information.
Labor-Management Reporting and Disclosure Act (1959) also known as Landrum-Griffin Act
This Act outlawed “hot cargo” agreements.
Labor-Management Reporting and Disclosure Act (1959) also known as Landrum-Griffin Act
This Act gave economic strikers right to vote in representative elections held within 12 months after a strike starts, regardless of whether they currently work for the company or not.
Labor-Management Reporting and Disclosure Act (1959) also known as Landrum-Griffin Act
This Act restricted recognition or organizational picketing on behalf of uncertified unions and strengthened bans on secondary boycotts.
Labor-Management Reporting and Disclosure Act (1959) also known as Landrum-Griffin Act
This Act is also known as Landrum- Griffin Act
Labor-Management Reporting and Disclosure Act (1959)
Describe the process (steps) for union to be selected.
- Union-organizing campaign
- Authorization cards/petition
- Petition for certification
- Representation hearing
- Election campaign (if election granted)
- Election
- Certification of representative (union elected)
- Certification of results (no union elected)
In the Union Organizing Campaigns, the initila contact may occur via:
- Employees contact a union
- A union organizer contacts employees
- Management contacts a union
Union’s considerations prior to organizing campaign
- number of dues-paying employees
- cost to organize
- chances of success
- cost of servicing the bargaining unit
- strategic importance of the employer
- seriousness of employees to organize
- other demands for union $$$ (budget, staff time to run the union)
- chances for a Corporate Campaign
An agreement under which the employer agrees not to resist the union organizing attempt.
Neutrality agreement.
These union tactic of attention-grabbing stunt (e.g., inflatable derogatory caricatures like a rat, an action commonly referred to as “flying the rat”) outside the employer’s property are intended to same and intimidate the employer. Such actions have been determined to be permissible by this U.S. Supreme Court decision.
DeBartolo Corp. v. Gulf Coast Trades Counc. (1988) known as the Bartollo II.
Examples of Union organizing tactics.
- inside organizing
- “salting”
- leafleting
- meetings offsite
- home visits
- telephone organizing
- internet campaigns
- indirect pressure
- picketing
- corporate campaigns
In this U.S. Supreme Court decision, the Court held that a worker may be a company’s “employee’ within the terms of the National Labor Relations Act, even if, at the same time, a union pays that worker to help the union organize the company.
NLRBv. Town & Country Electric, 1995.
In this case, the NLRB ruled that, “one cannot be denied what one does not genuinely seek”, meaning that an applicant for employment must be genuinely interested in seeking to establish an employment relationships with the employer in order to be protected against hiring discrimination based on union affiliation or activity.
Toering Electric Company 2007 NLRB’s decision
In this case, the NLRB provided the employers some relief in salting by announcing a new evidentiary standard for determining the period of pay back. The burden of proof in determining the period of back pay falls on the union, in event when an employer violates the NLRA by refusing to hire a salt based on his or her union activity.
Oil Capital Sheet Metal, Inc. v. NLRB, 2007
In this NLRB’s decision, the employer was found in violation of NLRA, when the employer used a hiring system to combat salting. The company restricted individuals from filing more than one application in a 30-day period by imposing a $50 fee on subsequent applications.
KenMor Electric Company, Inc. v. NLRB, 2010
Forms of union picketing.
- Organizational picketing
- Recognitional picketing
- Informational picketing
- Bannering
Management’s rights in a unionizing campaign.
- Hire consultants
- Point out the consequences of a strike
- State that improvements are not dependent on unionization
- Point out the financial costs of having a union
- Communicate through supervisors and group meetings
Union Organizing Neutrality / cooperation agreements provisions
- Gag rule
- No secret- ballot election
- Access to premises
- Access to personal information
- Captive audience speeches
Also known as an “R” petition.
Certification of representation
During the representation hearing, the NLRB seeks to determine:
- the number of employees included in the petition as compared to teh bargaining unit the union is seeking to represent
- the validity and number of signatures
- the presence or absence of objective considerations for believing the union does not support a majority
The NLRB holds a formal representation hearing (within 12 days o petition filing) if both parties disagree on the following issues
- Voters eligibility (supervisors vs. non-supervisors)
- Determination (composition) of the bargaining unit
- Time, date, or place of the election (w/in 30 days of hearing, or w/in 42 days petition was filed)
Categories of workers excluded from union representation voting:
- managers
- supervisors
- domestic workers
- some agricultural workers
- confidential employees
Items to consider (appropriateness) when determining the bargaining unit
- community of interests
- Geographical and physical proximity
- Employer’s administrative or territorial divisions
- Functional integration
- Interchange of employees
- Bargaining history
- Employee desires
- Extent of organization
Deciding whether an employee with special craft skills and training should be separate from semiskilled workers in an industrial unit or whether production and maintenance workers should be groups in a single unit with white-collar employees performing technical or clerical functions.
deciding on community of interests when determining the bargaining unit.
Community of interest
Key knowledge
If a union seeks a unit of employees that is “readily identifiable as a group” (e.g. a unit of a single job classification) and those employees “share a community of interest”, the board will approve that unit, unless the employer can show that employees in a larger unit share an undefined “overwhelming community of interest” with the employees in the unit requested by the union.
Deciding whether a group of machinists working for a company with locations in Hawaii and Texas should be grouped in a single unit.
This is an example of geographical and physical proximity appropriateness when determining the bargaining unit.
Deciding whether eight hospitals located in close proximity, all sharing the same policies and practices, and personnel management should be grouped as a single unit.
Deciding employer’s administrative or territorial divisions appropriateness during the union bargaining
This type of appropriateness consider factors relating to the degree that ll potentially incurable employees are required to maintain the company’s major production processes.
Functional integration appropriateness
This appropriateness considers similarity in wages, hours, and working conditions.
Mutuality of interests appropriateness
Deciding whether a clothing assembly process, it would make the most sense to keep all the people who make the pieces of a given article in one unit rather than to break them apart into separate units (separating employees who sew trims and buttons, employees who sew zippers, etc.)
This is an example of Functional integration appropriateness during the union bargaining
This type of appropriateness considers distance between units, employees, etc.
Geographical or physical proximity appropriateness during the unin bargaining
Deciding whether labor relations or personnel management within a company is uniform over a given territory
Employer’s administrative or territorial divisions appropriateness during the union bargaining.
This type of appropriateness considers if employees are frequently transferred across plants or offices.
Interchange of employees. This may lead to NLRB to designate a multi-plant unit.
This type of appropriateness considers the past practices of the union and the employer (decertification or unit clarification election) or typical industry practices in bargaining.
Bargaining history appropriateness during the union bargaining.
This type of appropriateness exists when a bargaining history involving severl units exists, the NLRB may allow employees to vote for or against the units’ inclusion in a more comprehensive way.
Employee desires.
This appropriateness a change may desired in the bargaining unit. Int his situation, the NLRB would evaluate how far the process is and whether or not it’s too far to back out.
Extent of organization.
Types of bars to the election process.
- Contract bar
- Statutory bar
- Certification-year bar
- Voluntary-recognition bar
- Blocking-charge bar
- Prior-petition bar
- Recognition bar
This type of election bar exists when a valid collective bargaining agreement (CBA) exists.
Contract bar
This type of bar exists when a valid election has been conducted within the previous 12 months in the same unit.
Statutory bar
This type of bar exists when a union has been initially certified during the previous 12 months.
Certification-recognition bar.
This type of bar exists when a reasonable period after the union has been informally / voluntarily recognized by the employer has not elapsed.
Voluntary-recognition bar
This type of bar exists when an unfair labor practice (ULP) charge affecting the proposed bargaining unit is pending.
Blocking-petition bar
This type of bar exists when a prior election petition was withdrawn by the requesting party within the past six months.
Prior-petition bar
This type of bar exists when an employer recognizes a union; a decertification election is precluded for a minimum of six months and up to 12 months.
Recognition bar
Contract Bar to the union election process
Key Knowledge
This doctrine states that a valid, signed CBA covering a period of three years or less will bar an election during the lie of the agreement, except for a 30-day period preceding the expiration of the collective bargaining agreement. For most employers, this period is between the 90th and 60th days prior to expiration.
Statutory bar to the election process.
Key Knowledge
The statutory bar does not apply to any union’s organizing attempt for a different unit of the same employer, nor does it preclude the union from starting organizing activities for a subsequent effort immediately after the unsuccessful attempt.
Certification-year bar to the union election process.
Key Knowledge
This bar will apply even if there is a question about the union’s continuing majority status except in “unusual circumstances”.
In these cases the NLRB finally ruled that recognition bar does not apply when recognition has been voluntary, based on a card check. NLRB also ruled that union and employer interests may not be in the best interests of the employees and that the employees have 45-day window to petition NLRB for decertification.
Dana Corporation / Metaldyne Corporation
and
Lamons Gasket
Who and when arranges an union election.
Once an election petition is submitted to the NLRB regional office and any hearing issues are resolved, a staff member fromt hat office arranges an election.
When does the Excelsior List must be filed?
Within seven days after consent to or direction of an election the employer must file with the NLRB the name and addresses of all eligible bargaining unit employees.
The Excelsior List is commonly named after this case, in which the NLRB first adapted this requirement.
Excelsior Underwear, Inc. (1966)
Voters Eligibility requirements
- must be on the payroll during both the payroll period immediately before the date of the direction of election and
- must be on payroll period immediately receding the date of the election.
Employees generally no eligible to vote because of presumed lack of continued interest in the unit include:
- Employees who are on leave of absence and for whom there is no reasonable probability that they will return to work.
- Employees who have been permanently laid off or discharged (exception: military leave, sick leave, temporary layoff, vacation.)
Voter Eligibility who don’t meet the criteria - exception.
Key Knowledge
Striking workers who have bee permanently replaced are eligible to vote in any election conducted within 12 months after the commencement of the strike.
Twelve functions of excluded employees (union voter eligibility)
- hire
- transfer
- suspend
- lay off
- recall
- promote
- discharge
- assign
- reward
- discipline
- direct employees
- handle grievances
One greatest advantage that the employer has over unions during the election campaign.
“Captive audience”, the employer can present speeches during working time.
(provided they are not presented within 24 hours of the election and the content must not include promises of benefits or threats of reprisals.)
One greatest advantage the unions have over the employer during teh election campaign.
Union may visit employees in their hoes or contact them on the telephone or through the Internet, etc, to discuss the election.
Union election Eligibility Challenges
Key Knowledge
- Challenges must be made before ballot goes into the ballot box or before individual goes into the boot to vote.
- Challenges ballots are kept apart from unchallenged ones
- NLRB determines their validity after the election
- They are determined and counted only if they have the potential to affect the outcome.
Counting of eligible votes during union election.
Key Knowledge
If a simple majority (50% plus one person) of those casting a ballot (not the just those eligible to vote) vote for union representation, the union is certified. A tie vote results in no certification.
ex. in a bargaining unit of 100 employees, 60 employees actually cast a vote, 31 votes would be required for union certification.
Overturning Election Outcomes
Key Knowledge
The 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.
Other than election process paths to unionization.
- The employer may volunteer recognition based on proof of the union’s majority status.
- The union may convince the employer to grand recognition
- The union may convince the employer to witness its majority status
- The NLRB can direct the employer to begin negotiating with the union (Gissel order)
Union decertification and deauthorization.
Key Knowledge
The employer may not encourage or unduly assist the employees in the preparation or filing of a decertification petition.
What percentage of the bargaining unit must sign petition for a union decertification election.
at least 30% of the employees represented by the union in the bargaining unit.
When can the petition for union decertification be file with the NLRB.
- Any time when no contract is in effect
- 60-90 days before the expiration of the current contract in industries other than health care
- 90-120 days before the expiration of the contract in the health care industry
Reasons for union decertification.
- fair treatment of employees by employers
- poor job by union providing services
- inability of union to negotiate a contract
- striking employees that can be replaced
- employees want a different union
Who may file a petition for Union Decertification.
Decertification petition may be filed by an individual employee, a group of employees, or an employee representative.
(never the employer)
Union decertification
Key Knowledge
- when the petition for decertification is found valid, a secret-ballot election can be held
- a majority of the voting employees must approve decertification
- a tie vote removes the union
- if union representation is terminated, no election will be allowed for one year
How many votes are required for union deauthorization.
Majority (at least 50% plus one) of eligible voters
tie vote results in no deauthorization
non-voters are considered votes against the deauthorization measure.
How many votes are required for union decertification.
at least 50% of votes cast
tie vote results in decertification
FAA Modernization and Reform Act of 2012
Key Knowledge
Amended the Railway Labor Act to change union certification process:
- the National Mediation Board (NMB) will impose greater oversight over the union certification process
- changed from 35% to at least 50% requirement of interested employees needed for union election
- when no majority opted an NMB election ballot option, the runoff election will be required between the two most votes options
- the Government Accountability Office (GAO) will evaluate and audit the National Mediation Board (NMB) every two years
All of the following may happen after a preliminary NLRB investigation EXCEPT:
a,) a waiver of the right to a public hearing
b.) a written statement of the facts underlying the charge
c.) resolution of the disputes by the charged party
d.) appeal to one of the United States courts of Appeals
d.) appeal to one of the United States courts of Appeals
According to the NLRB, a company can legally
a. ) refuse to bargain with a union that represents a majority of employees after good-faith bargaining
b. ) bargain with individual employees in the bargaining unit
c. ) protect their property
d. ) refuse to bargain with a bargaining unit specified by the NLRB
c.) protect their property
Which of the following statement is an example of a threat of reprisal
a. ) “Employees do not need unions.”
b. ) “Employees will lose existing benefits”
c. ) “Employers can provide anything employees need.”
d. ) “The organization is successful and will continue to be successful.”
b.) “Employees will lose existing benefits”
Which of the following does NOT constitute an employer unfair labor practices
a. ) Refusing to bargain with an NLRB-recognized union
b. ) Interfering with, restraining, or coercing employees
c. ) Campaigning against the union through speeches
d. ) Dominating or unlawfully supporting a labor organization
c.) Campaigning against the union through speeches
According to the NLRB, a union
a. ) must represent all workers in a bargaining unit equally, union or not
b. ) can insist that all employees in a bargaining unit use the union grievance procedure
c. ) can legally attempt to get a worker fired if that employee seeks to decertify the union
d. ) must expel a union member for failure to pay union dues
a.) must represent all workers in a bargaining unit equally, union or not
Which of the following does NOT constitute an unfair labor practice by the union
a. ) Charging workers a service charge for representation
b. ) Fining employees for crossing a picket line after they resigned from union
c. )Causing en employer to discharge employees because they disagreed with union policy
d. ) Insisting on the inclusion of a closed shop contract provision
a.) Charging workers a service charge for representation during grievance proceedings
Basic employer rights during unionization campaign.
- Exercise freedom of speech
- File ULPs against union
- Discipline or terminate employees for misconduct or negligence under the standard of just cause or proper cause or consistently with work rules and consistantly enforced policies and practices
Employee rights during unionization campaign
- Sign a union authorization card (or refuse to)
- Form an employee union to bargain on their behalf
- Engage in activities with other employees to improve the terms and conditions of their work
- Strike and picket (within restrictions) to secure better working conditions
- Circulate a petition among employees for the redress of a grievance
- File a ULP charge against a union or employer with the NLRB
What law prohibits unions from engaging in unfair labor practices.
LMRA Labor- Management Relations Act
What law prohibits employer from engaging in unfair labor practices.
NLRA National Labor Relations Act
Which institution adjudicates unfair labor practices in the private sector.
National Labor Relations Board
Which institution adjudicates unfair labor practices (ULPs) in the public sector?
FLRA - Federal Labor Relations Authority
A ULP charge is referred to as a “….” charge in NLRB terminology.
“C” charge
Employer ULPs
- Interference, restraint, and coercion
- Domination and unlawful support of labor organizations
- Discrimination to discourage union membership
- Retaliation
- Refusal to bargain
Union ULPs
- Union restraints and coercion
- Failure to provide fair representation
- Discrimination against nonmembers
- Inducing unlawful discrimination by the employer
- Excessive or discriminatory membership fees
- Featherbedding
- Refusal to bargain
Examples of employer ULP - interference, restrain, and coercion.
- Interfering with Section 7 rights to form a labor organization.
- Creating an atmosphere of threats or violence
- Threats to close or relocate the plant because of unionization
- Statements that unionization leads to strikes and loss of jobs
- Statements that employees will lose existing benefits
- Promises of improvements
- Surveillance or interrogation of employees
- Inciting antiunion activity
Lagal employer practices during union campaign.
The employer may:
- Show that plants in similar situations closed for economic reasons due to the increased costs to the employer of a union contract.
- Point out the strike history of the union under consideration and the economic and legal consequences of strikes.
- Tell employees that the employer has the right to replace economic strikers, temporarily or permanently
- Change compensations, such as general increases
- Solicit employee grievances, unless associated with an effort to keep the union out
- Observe the employees during working time on employer property
What does acronym TIPS stand for:
TIPS is a simple way to help supervisors avoid unfair labor practices during union organizing. T - Threaten I - Interrogate P - Promise S - Spy
In general, a committee is not a labor organization if it:
Key Knowledge
- Simply forwards recommendations to the employer that the employer if free to ignore or overrule
- Does not act in a representative manner
- Limits its activity to clarify suggestions from other employees WITHOUT prioritizing or recommending them
- Deals only with operational issues (and not with working conditions, wages, or benefits)
Examples of a failure of duty of fair representation by union.
Key Knowledge
- Failing to provide union representation in investigatory interviews when requested by an employee (Weingarten rights)
- ignoring or dismissing meritorious grievances
- basing decision on discriminatory motives or personal animosity
- delaying a grievance
- failure to inform an employee that the union has accepted a different remedy that the employee sought
- failure to keep members informed of arbitration awards that affect members’ rights
If a union forces an employer to discharge an employee who has provoked the union. This is an example of….
Union ULP - Inducing unlawful discrimination by the employer.
A union cannot force an employer to commit an act in violation of contract provisions.
Union demands that the employer retains the employees on the locomotive crews who are responsible for stoking the steam when diesel locomotives are introduced.
This is an example of.
Featherbedding - requiring to hire more employees than necessary.
Featherbedding is a union ULP.
When can a ULP be filed.
Within six months after the alleged ULP.
Preparing a ULP charge against a union or defend the organization against a ULP charge.
Key Knowledge
Based on 1964 NLRB Johnnie’s Poultry case, when questioning an employee about ULP charges, employer must inform employee that:
- The sole purpose of the interview is to assist in the preparation of the employer’s defense to an unfair labor practice charge
- Employee’s participation in the interview is completely voluntary
- Employee’s decision to participate or not in the interview will not be used against the employee
- Truthful or believed t be truthful statements may not be used against the employees
- The employer will not ask he employee about his or her opinions or feelings about ay union activities.
A presumptively good case that shifts the burden of proof to the opposing party, a case strong enough to require a jury’s consideration. A type of case with some evidence that is not refuted by clear, convincing, and documented facts.
Prima facie case
Types of settlement agreements in the NLRB ULP charges.
- Non-board settlements
- Informal settlements
- Formal settlements
This type of ULP charge settlement results in the charging party’s withdrawal of the ULP charge. It must be approved by the NLRB’s regional director.
Non-board settlement
This type of ULP charge settlement may be reached if the charged party has no history of unfair labor practices and the likelihood of the violation being repeated is slight. The agreement often contains a non-admission clause that allows the charged party to resolve the dispute without admitting guilt.
Informal settlement
This type of ULP charge settlement discovers major unfair labor practices or patterns. It may or may not be approved by the NLRB’s General Counsel. When rejected by the General Counsel, the case enters the hearing case.
Formal settlement
ULP charge settlement
Key Knowledge
If the NLRB regional office determines that the ULP charge is a prima facie case, the regional director issues a complaint and then usually tries to settle it. The NLRB attempts to gain the consent of the charging party, but that consent is not necessary for settlement.
What does ALJ stand for.
Administrative Law Judge; an individual knowledgeable about the labor law and practices but not necessarily admitted to the bar, ALJ conducts the ULP charges hearing.
Who prosecutes a ULP charges case.
A staff attorney of the NLRB’s regional office, but eh party who filed the ULP charge may also present evidence at the hearing.
Both parties are entitled to representation at the hearing.
Possible NLRB- Ordered Remedies
(from most serious to less serious ULPs)
Employer is ordered to:
- recognize the union and begin bargaining
- reverse a decision to move a work unit
- reinstate employee(s) with back pay
- provide the union access to employees to to a new location
- read to all employees Section 7 rights and commit to respecting these rights in the future
- Reverse an illegal policy or cease an illegal activity, disband an unlawfully dominated labor organization, take back bribes
- Cease-and-desist
- post in the workplace a notice of employees’ Section 7 rights
Rights of dissatisfied party in the ULP charges hearing and the ALJ decision is made.
A party may file exceptions and supporting briefs with the NLRB in Washington, D.C., within 28 days.
Who enforces NLRB’s final decision
United States Courts of Appeals.
Conflicts between or among the appellate courts may be decided by the United States Supreme Court, however this level is generally limited to issue that have great impact on administration or enforcement of the Labor- Management Relations Act or to the questions that have created great confusion.
What is the final step in the grievance process under a union contract?
a. ) Discussion of grievances with manager
b. ) Third-party determination
c. ) Supervisor intervention
d. ) NLRB court ruling
b.) Third party determination
Under the Weingarten rights,
a union employee has the right to have another employee present during certain investigatory interviews
A company that wants to change an existing collective bargaining agreement must notify the other party how many days before the expiration of the contract.
60
Which of the following statements about a union negotiating a collective bargaining agreement in a right-to-work state is true?
a. ) The union ay include an agency shop clause
b. ) The union may substitute a maintenance of fees clause
c. ) The union may charge the employer for nonunion member dues and fees
d. ) The union may not require employees to join a union or pay dues r fees if the employees choose not to join.
d.) The union may not require employees to join a union or pay dues r fees if the employees choose not to join.
Unlawful circumvention refers to an employer’s
a. ) refusal to provide relevant information for the negotiation process
b. ) refusal to furnish information that would violate employee privacy
c. ) attempt to discuss with employees any proposals not presented during negotiations
d. ) attempt to go around the union by hiring temporary replacement workers.
c.) attempt to discuss with employees any proposals not presented during negotiations
Which of the following types of bargaining would MOST likely be used for bargaining over issues such as workplace health and safety.
a. ) Distributive
b. ) Integrative
c. ) Attitudinal
d. ) Variable
b.) Integrative
Which of the following types of bargaining would MOST likely be used for bargaining over wages?
a. ) Distributive
b. ) Integrative
c. ) Attitudinal
d. ) Variable
a.) Distributive
When an employer bargains with several unions simultaneously, it is known as what type of collective bargaining?
a. ) Pattern
b. ) Coalition
c. ) Coordinated
d) Focused
c.) Coordinated
When more than one employer negotiates with the union, it is known as what type of collective bargaining?
a. ) Pattern
b. ) Coalition
c. ) Coordinated
d) Focused
b.) Coalition
A union that concentrates on negotiations with one employer and then negotiates similar contracts with competitors is using what type of collective bargaining?
a. ) Pattern
b. ) Coalition
c. ) Coordinated
d. ) Focused
a.) Pattern
Which of the following is an example of a voluntary collective bargaining subject?
a. ) Rate of pay
b. ) Overtime
c. ) Hot cargo clauses
d. ) Neutrality agreements
d.) Neutrality agreements
Which of the following is NOT a category of collective bargaining subjects?
a. ) Mandatory subjects
b. ) Reserved subjects
c. ) Voluntary subjects
d. ) Illegal subjects
b.) Reserved subjects
Which of the following may be a protected union activity?
a. ) Primary picketing
b. ) Wildcat strikes
c. ) Secondary boycotts
d. ) Shutdowns
a.) Primary picketing
Employees of a printing company are on strike, effectively shutting down the operation. The company owner transfers work to a neutral third-party employer, effectively using the neutral employees as strike breakers. In this situation, the union
a. ) has no legal course of action
b. ) can extend its primary picketing to include the neutral employer
c. ) can file an injunction against the neutral employer
d. ) can petition employees of the neutral employer to join the strike
b.) can extend its primary picketing to include the neutral employer
In the face of a strike threat, management is most interested in
a. ) arranging for union security
b. ) information local law enforcement officers
c. ) assigning supervisors to replace striking workers
d. ) arranging continuation of health insurance for employees
c.) assigning supervisors to replace striking workers
Which of the following best describes ally doctrine?
a. ) A neutral employer who becomes a target of a picket line because he allied with a struck employer
b. ) an organization is struck only because it is interlocked in a single economic enterprise, where a complementing business is under strike
c. ) an employer is the owner of a union shop and a nonunion shop
d. ) a doctrine used to prevent employers from evading their collective-bargaining responsibilities
a.) A neutral employer who becomes a target of a picket line because he allied with a struck employer
There are several ways that boycotts occur, including the following:
The ally doctrine states that when an employer whose workers are on strike contacts a neutral employer and asks the neutral employer to produce the work that would normally be performed by the striking workers, the neutral employer becomes an ally of the struck employer and is therefore a legitimate target of a picket line.
An alter ego doctrine is a doctrine used to protect creditors from frauds perpetrated by shareholders. It is also used to prevent employers from evading their collective-bargaining responsibilities.
Double-breasting is when an employer is the owner of a union shop and a nonunion shop.
Straight-line operations is when an organization is struck only because it is interlocked in a single economic enterprise, where a complementing business is under strike.
An employer is required to displace workers hired on a temporary basis and reinstate striking workers when a strike
a. ) is a sympathy strike
b. ) is the result of a ULP
c. ) is declared illegal by the NLRB
d. ) last less than 48 hours
b.) is the result of a ULP
Which of the following is a strike that occurs without the approval of the union?
a. ) Economic strike
b. ) Wildcat strike
c. ) Secondary strike
d. ) Spontaneous strike
c.) Secondary strike
Factors influencing collective bargaining may be categorized as:
- Legal and regulatory factors
- Bargaining precedents
- Public and employee opinion
- Economic conditions
This category of factors influencing collective bargaining includes federal, state, and local regulations that make collective bargaining agreements enforceable (including the NLRA)
Legal and regulatory factors
This category of factors influencing collective bargaining includes factors during the bargaining process that led to previous agreements and/or the existing agreement.
Bargaining precedents .
This category of factors influencing collective bargaining includes public sentiments about the organization and the union and what employees deem to be pertinent.
Public and employee opinion
This category of factors influencing collective bargaining involves the state of the local and national economy.
Economic conditions factors
Categories of collective bargaining subjects
- Mandatory subjects
- Permissive subjects
- Illegal subjects
This category of collective bargaining subjects is required by law and the NLRB and must be negotiated at the request of either party.
Mandatory subjects
This category of collective bargaining subjects includes subjects that may be bargained but are not obligatory. Also known as voluntary or non-mandatory subjects.
Permissive subjects
This category of collective bargaining subjects is also called external subject and these are unlawful by the statue.
Illegal subject
Closed shops, discriminatory hiring. These are examples of what type of collective bargaining subjects?
Illegal or external subject
Benefits for retired union members, settlement of ULPs, neutrality agreements, etc. These are examples of what type of collective bargaining subjects?
Permissive subjects; also known as voluntary or non-mandatory subjects.
Overtime, discharges, discipline, layoff, recall, seniority, promotion, transfer, safety, vacation, holidays, leave of absence, sick leave, some forms of union security, grievance, demotion, assignment, and contracting out work. These are examples of what type of collective bargaining subjects?
Mandatory subjects
Collective bargaining subjects
Key Knowledge
The significance of the different collective bargaining subjects distinction is that the parties may bargain to impasse and strike only on mandatory subjects of bargaining.
Insistence upon a non-mandatory subject that the other party refuses to discuses is an unfair labor practice that violates the good-faith bargaining requirement.
Collective bargaining in the Public Sector
Key Knowledge
In the public sector, the subjects for bargaining ad the process itself are defined under state and local laws.
In some states, public employee pension plans are set by statue, not by the collective bargaining.
In some states, certain types of employees are allowed to strike, while others are not.
Any type of bargaining concessions may need legislative approval.
Four types of collective bargaining:
- Pattern bargaining
- Coalition bargaining
- Coordinated bargaining
- Segmented bargaining
This type of collective bargaining may also be referred to as whipsawing and may involve playing one employer against other similarly situated employers.
Pattern, or parallel bargaining
The union selects one company to negotiate with first based on past negotiating practice and the company’s current economic situation.
This strategy may be pursued by the union to start what type of collective bargaining?
Pattern of parallel bargaining
A company that is facing greater competitive pressures and/or is less profitable than others in the industry may be less able to suffer the consequences of a strike. This, therefore, reduces the employer’s negotiating strength and increases the union’s leverage.
This strategy may be pursued by the union to start what type of collective bargaining?
Pattern of parallel bargaining.
To gain bargaining leverage, three trucking companies form a cohesive alliance and negotiate with the union. Their strategies are blended, and one contract results.
This strategy may be an example of what type of union bargaining?
Coalition or multiple employer bargaining.
In this type of collective bargaining, two or more unions representing separate bargaining units formally interact, exchange information, sit on each other’s bargaining committees, and cooperate but at the same time keep decisions on individual collective bargaining units distinctly separate from one another.
This type of strategy is known in what type of collective bargaining?
Coordinated bargaining.
This type of collective bargaining is common in petroleum and diversified financial industries.
Coordinated bargaining
General Electric has a Committee, formed int eh late 1960s, that negotiates for over a dozen unions representing nearly 50,000 workers. Further, the committee aspires to build an international network of GE workers and their unions.
This type of collective bargaining strategy is known as.
Coordinated bargaining.
This type of collective bargaining is common in trucking and other industries where there are many small companies but a single dominant union.
Coalition or multiple employer bargaining.
Employer’s disadvantage of pattern bargaining.
All participating companies are “burdened” with the same conditions, and a marginally successful company may bot be abel to accept conditions negotiated on a national basis for all employers.
This type of collective bargaining is frequent within the automobile industry.
Pattern or parallel bargaining.
This type of collective bargaining is popular in the airline industry.
Segmented bargaining.
Negotiators for an airline union decide to create committees to deal with verity of different bargaining items. Each committee works independently to identify and address contract issues, however the entire group meets periodically to resolve obstacles, consider, revise, and approve proposals.
This is an example of what type of bargaining?
Segmented bargaining.
Contract negotiating techniques
Key Knowledge
Ideally, the bargaining process should use principled negotiation techniques rather than positional techniques.
In this type of CBA negotiation bargaining each party trie to negotiate for the best possible outcome. Normally occurs over items such as wages and premium pay. This type of bargaining is central to contract negotiations and is usually regarded as the dominant activity in the union-management relationship.
Distributive bargaining.
Types of CBA negotiation techniques.
- Positional negotiation
- Principled negotiation
Types of CBA bargainings.
- Distributive bargaining
- Integrated bargaining
- Interest-based bargaining (IBB)
This bargaining type is also called “mutual gains” or “win-win” bargaining.
Interest-based bargaining (IBB)
Interest-based bargaining (IBB)
Key Knowledge
IBB relies upon a variety of techniques (brainstorming, facilitation) to promote open communication. The purpose is to develop option. The overarching objective or the entire IBB process is to reach agreement by consensus, a resolution that everyone can accept and support (even if that course of action might not be their first choice)
The employer does not need to provide information, even in the spirit of Good-Faith Bargaining, if….
- the request is for non-bargaining-related purposes
- the cost of providing the information is prohibitive
- the information would violate the privacy of an employee or disclose the employer’s trade secrets and financial reports
- the union has waived or relinquished its rights to the requested information
Violations of Good-Faith bargaining.
- Surface bargaining
- Lack of concession
- Refusal to advance proposals and demands
- Dilatory tactics
- Imposing conditions
- Commission of unfair labor practices during negotiations
- Not providing information
- Refusal to bargain
This type of good-faith bargaining violation involves merely going through the motions of bargaining with no real intention of completing a formal agreement.
Surface bargaining
This type of good-faith bargaining violation involves the lack of willingness to compromise.
Lack of concession
This type of good-faith bargaining violation involves the lack in the advancement of proposals.
Refusal to advance proposals and demands
This type of good-faith bargaining violation involves the refusal to meet at all with the union.
Dilatory tactics
This type of good-faith bargaining violation involves imposing conditions that are burdensome or unreasonable
Imposing conditions
This type of good-faith bargaining violation occurs when an employer violates its duty to bargain when it refuses to negotiate with the union representative.
Bypassing the representative
This type of good-faith bargaining violation involves unfair labor practices and thus poorly reflect upon the good faith of the guilty party.
Commission of unfair labor practices during negotiations
This type of good-faith bargaining violation involves failure to supply the requested information to the union.
Not providing information
This type of good-faith bargaining violation involves refusal to bargain on a mandatory item (one MUST bargain over these)
or insistence on a permissive item (one MAY bargain over these).
Refusal to bargain
Obligatory Bargaining Conditions / Concepts
- Unlawful circumvention
- Notice requirements
- Duty of successor employers or unions
This occurs when an employer tries to discuss with its employees bargaining proposals that have not previously beed disclosed to the union’ or if an employer attempt directly to communicate wit employees at the of contract negotiations.
Unlawful circumvention
The Labor-Management Relations Act requires the party desiring a renegotiation of the contract t notify the other party of its intention to offer to bargain a new agreement; this must come at least 60 days prior to the end of the contract if the requesting party intends to terminate or modify the agreement at that time.
This is called…
Notice requirements
Additionally, the initiating party must also notify the Federal Mediation and Conciliation Service and state mediation agencies within 30 days of notifying the other party regarding the termination or modification of the agreement.
What determines duty of successor employer.
It must be “perfectly clear” from the outset that the majority of the new (hired) employees in the unit are union employees, in which case the buyer must recognize the union and cannot set new terms and conditions of employment without first bargaining with the union.
NLRB factors used to determine successor status.
- Substantial continuity of same business operations
- Use of the same business plan
- Same workforce employed
- Same jobs under the same working conditions
- Same supervisors
- Same equipment and production methods
- Same products or services produced
“Shop” provisions.
- Closed shop
- Union shop
- Open shop
- Agency shop
“Closed shops”, in Non-RTW States are illegal.
True of False.
True. Closed shops are illegal in both, Non-RTW and RTW states.
“Closed Shops”, in RTW states are illegal.
True or False.
True. Closed shops are illegal in both, Non-RTW and RTW states.
“Open Shops” are illegal in both, Non-RTW and RTW states.
True or False.
False. “Open Shops” are legal in both, Non-RTW and RTW states.
Are “Union Shops” legal in Non-RTW states / RTW states?
Non-RTW states - Legal
RTW States - Illegal
Are “Agency Shops” legal in Non-RTW states / RTW states?
Non-RTW States - Legal
RTW States - Illegal
Are “Open Shops” legal in Non-RTW states / RTW states?
Legal in both.
Are “Closed Shops” legal in Non-RTW states / RTW states?
Illegal in both.
What type of “shops” provisions are illegal in RTW states?
- Closed shops
- Union shops
- Agency shops
What type of “shops” provisions are legal in RTW states?
Open shop only.
What type of “shop” provisions are legal in non-RTW states?
- Union shops
- Open shops
- Agency shops
What type of “shop provisions are illegal in NON-RTW states?
Closed shops
How to determine cost per hours paid or worked?
Cost of labor / Number of hours paid or worked
What consists of cost of labor (in determining the costs per hour paid or worked)
Cost of labor includes:
- wages
- benefits
- paid time off
- premium pay
- reporting pay
- donning and doffing pay
- safety equipment provided
- taxes
The union grievances arise from:
unanswered questions or misunderstood or miscommunicated policies.
To avoid grievances both management and union representatives should:
Key Knowledge
- Evaluate the workplace for potential problems and address these issues before they become problems
- Know the labor agreement in its entirety, including past practices ad local memoranda of understanding
- Know the employees and their problems
Union grievance process steps
- Immediate supervisors
- Intermediate supervisor
- Higher-level management
- Third party determination
Grievances Do’s
- Investigate (use just cause 7-tests)
- Require union to identify specific contract violation
- Comply with contractual time limits
- Examine the employee’s file
- Examine prior grievance records
- Document meeting with copious notes
Handling grievances Don’ts
- Don’t make agreements outside of the contract
- Don’t admit to binding effect of a past practice
- Don’t relinquish to the union your rights as a manager
- Don’t confuse the contract with what is fair
- Don’t bargain over items not covered by the contract
- Don’t agree to informal contract amendments
- Don’t give long, written grievance answers
- Don’t trade a grievance settlement for a grievance withdrawal
Weingarten Case
Key Knowledge
- An employee’s right to have a union representative present applies only to an investigatory interview that may lead to disciplinary actions
- The person attending the investigatory interview must be affiliated with the union (no attorney or a relative)
- The employer is not required to bargain with the representative or to permit him of her to disrupt the proper conduct of the interview
Weingarten case in non-union organization
Key Knowledge
Based on the 2004 NLRB’s decision, which reversed previous decision, nonunion employees who are not supervisors, are not able to bring along a coworker to an investigatory meeting with an employer.
Weingarten decision applies only to unionized employees
These methods are used for dispute resolution in lieu of litigation.
Grievance and Arbitration Procedures
This type of arbitration is commonly used in the public sector, where employees amy 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.
Compulsory arbitration
In the public sector, arbitration for federal agencies is governed by this law.
Executive Order 11491 ad the Federal Service Labor-Management Relations Act (FSLMRA)
Superiority of arbitration
Key Knowledge
The U.S. Supreme Court has acknowledged the superiority of arbitration in resolving collective bargaining disputes. The courts have also stressed that the arbitrator’s decision, as long as they are based on interpretation of the contract, should be final and binding and not questioned by the courts.
Arbitration without a contract
Key Knowledge
Because there is no contract between the organization and the employee, it is possible that after arbitration the dispute could go to court.
Which of the following best describes duty of loyalty:
- The requirement that employees act in the best interest of their employer and not achieve personal gain by soliciting work away form the employer
- The requirement that employees act within the authority granted by the employer’s policies, procedures, and rules
- The requirement that employee is to act with practical care and skill in the course of performing his or her duties
- The requirement that employees act in their own best interest to protect themselves from discriminatory or criminal acts
The requirement that employees act in the best interest of their employer and not achieve personal gain by soliciting work away from the employer
The duty of loyalty requires that employees act in the best interest of the employer and do not solicit work away from the employer to benefit themselves. Other related common-law doctrines include the duty of diligence, which requires an employee to act with reasonable care and skill in the course of performing work for the employer, and also the duty of obedience which requires employees to act within the authority granted by the employer’s policies, procedures, and rules.
