Module 5: Employee and Labor
Relations
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14% SPHR
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© SHRM
5-1
Labor Organization
A labor organization is:
any organization of any kind, or any agency or
employee representation committee or plan, in
which employees participate and which exists
for the purpose, in whole or in part, of dealing
with employers concerning grievances, labor
disputes, wages, rates of pay, hours of
employment, or conditions of work.
National Labor Relations Act (NLRA)
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5-2
Milestones in Employee and Labor
Relations
Wagner Act (NLRA)
and founding of NLRB
and
Social Security Act
1935
NorrisAFL founded
LaGuardia Act
1886
1932
National
Railway
Knights of
Sherman Anti- Labor Act
Industrial
Labor organized
Trust Act
Recovery
Act
1926
1869
1890
1933
Clayton Act
1914
Landrum-Griffin
Act (Labor-Management
Reporting and Disclosure Act)
1959
Union
membership peaks
1950s
SHRM
1948
TaftHartley Act
1947
Industrial
revolution
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5-3
Why People Join Unions
Lack of
fairness/consistency
• Discipline process
• Seniority system
Poor
communication by
management
• Transparency
© SHRM
Failure to recognize
problems
• Willingness to
listen to and
address
complaints
Perceived lack of
control or input
• Avenues for
employee feedback
• Employee
participation
programs
Poor performance at
supervisory level
Perceived gross
economic inequities
• Training
• Access to strategic
information
• Governance
5-4
Recent Union Trends
Contrasting strategies for AFL-CIO and Change to Win
Concern over health insurance, pension issues, and corporate
bankruptcies
Adoption of aggressive organizing strategies
New forms of membership (associate members)
Recruiting of nontraditional members
Expanded organizing in micro-units
Role of NLRB and General Counsel
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5-5
National Labor Relations Act
(Wagner Act)
• Key act that applies to all workers, not just union
workers.
Section 7
rights
© SHRM
Employees shall have the right to:
• Self-organization.
• Form, join, or assist labor organizations.
• Bargain collectively through
representatives of their own choosing.
• Engage in concerted activity for the
purpose of mutual aid and protection.
• Refrain from such activities.
5-6
Employee Relations and EEO Laws
• EEO laws prohibit employment
discrimination.
• Laws provide protection that some
employees once looked to unions to
provide.
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5-7
Common Law
• Based on court decisions rather than statutory
law.
• Employment-at-will (EAW) is one of the most
important common-law doctrines.
– Employers have the right at any time, with or
without prior notice, to hire, fire, demote, or promote
anyone they choose unless there is a law or
contract to the contrary.
– Employees may quit at any time for any reason,
with or without prior notice.
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5-8
Exceptions to EAW
Public policy
• Allows employees to fulfill legal
obligations or exercise their
rights (jury duty, whistleblowing).
Implied contract
• Recognizes agreement implied
from circumstances (employee
handbook).
Implied covenant
of good faith and
fair dealing
• Requires honesty in transactions
(cannot fire an employee shortly
before he or she is eligible for a
pension).
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5-9
Common-Law Tort Claims
Tort law protects a person’s:
• Physical safety and well-being.
• Enjoyment of their property.
• Financial resources.
• Reputation.
Tort claims arise when these rights are
affected.
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5-10
Negligent Hiring/Retention
The hiring of an employee who the employer
knew (or should have known) posed a risk to
others
The retention of an employee who engages in
misconduct that poses a threat to others during
and after working hours
Claims can be prevented by conducting
background and reference checks on applicants.
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5-11
Defamation
Injuring someone’s reputation by making a
false and malicious statement
• Statement may be spoken (slander) or
written (libel).
• Statement must be shown to be:
– False and malicious.
– Harmful to employee’s reputation.
– Made without a legitimate business reason.
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5-12
An employer is usually protected against
charges of defamation in a referencechecking situation if the employer
A. shows remorse for harming the employee’s
reputation.
B. provides honest and accurate references about
former employees.
C. makes verbal comments but does not put them in
writing.
D. tries to verify the accuracy of information.
Answer: B
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5-13
Fraudulent Misrepresentation
Intentional deception relied upon and resulting in
injury to another person.
May include claims regarding significant terms of a
job offer.
Can include silence, innuendoes, or gestures that
are deceiving; need not be a positive statement.
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5-14
Other Common-Law Tort Claims
Employee’s duty of
loyalty
• Employee must not
degrade employer’s
reputation, service, or
products.
• Employee must not harm
the employer’s business.
• Obligation ceases when
employment relationship
ends.
© SHRM
Invasion of privacy
• Unreasonable intrusion
into seclusion of
another.
• Appropriation of a name
or likeness.
• Publication that
generates unreasonable
or false publicity.
5-15
Common-Law Contract Issues
Contract:
Agreement between two or more
persons to do or not do something in
exchange for something of value.
• Contract law provides remedies if the contract
is breached.
• Contracts can be written or oral.
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5-16
Agreements Enforced by Law
© SHRM
Express oral
contract
Unfair
competition
and
noncompete
agreements
Inevitable
disclosure
Employee’s
duty of loyalty
and
confidentiality
5-17
The Litigation Process
Notification
• Notify counsel promptly.
• Implement litigation hold.
• Warn against retaliatory actions.
Answering complaint • Be aware of time frame for response.
• Ensure attorney work product privilege.
Scheduling
conferences
• Ensure adequate preparation time.
Discovery process
• Provide focused, relevant, objective testimony.
• Conduct safe, legal, effective investigations.
Motion to dismiss
• Attorney decision and action
Summary judgment
• Work with attorney for organization’s best
interest.
Pretrial and trial
• Support evidentiary motions.
• Provide relevant information to attorney.
• Schedule witnesses.
© SHRM
5-18
Positive Characteristics of UnionFree Organizations
Clear position
re unionization
Balanced
promotion
decisions
Counseling
Fair, consistent
treatment
Access to
opportunities
Communication
and feedback
Problemsolving
procedures
Comparable
compensation and
benefits
Rewards and
recognition
© SHRM
Performance
appraisal
Management/
supervisor
training
5-19
Feedback and Communication in
Union-Free Organizations
Attitude (climate) surveys
HR/labor relations reviews
Skip-level interviews
Open-door meetings
Department meetings
Employee participation programs
Electronic communications
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5-20
Compensation and Benefits in a
Union-Free Environment
HR ensures that
employees are
informed about:
© SHRM
• Compensation and salary
data.
• Market comparisons.
• Salary grades.
• How raises are awarded.
• Cost of health care.
5-21
Labor-Management Cooperative
Strategies
Greater acceptance of partnerships
Willingness to share power
Open and candid sharing of information
Joint decision making on common issues
Win-win bargaining
Shared responsibility and accountability
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5-22
Employee Involvement (EI)
Also known as participative management or
empowerment
Links shared interests of
the employee and the
organization for mutual
benefit.
Gives employees the
freedom and
responsibility to make
job-related decisions.
HR:
 Communicates company goals.
 Develops and maintains EI
programs.
 Helps build trust in employees.
© SHRM
5-23
EI Strategies:
Job Design
Employee satisfaction
Job enlargement
Job rotation
Job enrichment
© SHRM
Employee efficiency
Specialization
Standardization
Division of labor
5-24
The degree to which an employee
completes an assignment with a tangible
outcome is an example of
A. skill variety.
B. task significance.
C. task identity.
D. autonomy.
Answer: C
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5-25
EI Strategies:
Alternate Work Schedules
Flextime
Telecommuting
Compressed
workweeks
Schedules
Regular
part-time
Phased
retirement
Job
sharing
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5-26
EI Strategies:
Workplace Teams
Committees
Work
teams
Project
teams
Teams are
accountable for
specific objectives and
performance goals.
Teams
Task
forces
© SHRM
Self-directed
teams
Teams and job design
combine to increase
productivity and job
satisfaction.
5-27
Which one of the following actions would
not be allowed under the NLRB’s “safe
harbors” for EPPs?
A. A committee includes both managers and employees.
B. A committee forwards best employee suggestions to
management.
C. A committee proposes changes to improve production
quality.
D. A committee performs a management function.
Answer: B
© SHRM
5-28
Employee Surveys
Attitude Surveys Opinion Surveys
Measure job
satisfaction
Measure data on
specific issues
Value of surveys is in measuring improvements
over regular time periods.
Employees should be guaranteed anonymity and
given feedback on results.
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5-29
Employee Focus Groups
Small group participating in a structured
discussion with a facilitator.
Provide qualitative
data on specific
issues.
Provide in-depth
feedback on
specific issues.
Can be used in conjunction
with or independent of a
survey.
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5-30
Common Errors in Interpreting Data
“Rush to
conclusions”
Manipulated
results
Graphical
misrepresentation
Errors
“Analysis
paralysis”
© SHRM
Analysis
errors
5-31
Policies, Procedures, and Work Rules
Policy
Broad statement that reflects
philosophy, objectives, or standards;
general in nature.
Procedure Detailed, step-by-step descriptions;
specify what, when, where, and who.
Work rule Reflects management decisions
regarding specific actions to be
taken or avoided in a given situation.
© SHRM
5-32
Guidelines for Employee Handbooks
• Be aware of tone, style, and look.
• Align handbook with
organization’s culture and values.
• Keep it simple and current.
For example,
• Distinguish between
organizational policies and job improperly drafted
handbooks can create
specifics.
an employment-at-will
• Accommodate multilingual
requirements.
exception.
• Obtain written evidence of
receipt.
• Be aware of legal obligations and
implications.
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5-33
Behavior Issues
• Absenteeism:
– Time lost when employees do not come to work as
scheduled
• Tardiness:
– Time lost when employees report to work late
When taking disciplinary action for excessive
absenteeism or tardiness, do not count
absences protected by USERRA, FMLA, or
state law.
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5-34
Due Process Tests for Discipline
Is the employee informed of rules and the consequences
of not following them?
Is discipline administered consistently and predictably?
Is the decision to discipline based on facts?
Is the employee allowed to ask questions and offer a
defense?
Does the employee have an avenue for appeal?
Is the discipline system structured progressively?
Are special circumstances considered?
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5-35
Measures to Avoid Disciplinary
Action
• Set clear expectations with detailed job
descriptions.
• Establish written policies, procedures, and work
rules.
• Establish a climate of communication.
• Maintain an open-door policy.
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5-36
Progressive Discipline
Document all
steps—even the
oral steps.
5.
Discharge
4. Final
written warning
3. Second warning
2. Warning
1. Problem solving and open dialog
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5-37
An employee is accused of a violation of a
dischargeable work rule. The HR manager
should
A. confront the employee and have an open dialog.
B. give an oral warning.
C. place the employee on administrative leave and
conduct an investigation.
D. terminate on the spot.
Answer: C
© SHRM
5-38
ADR Options
Open-door policy
Employees are encouraged to bring grievance to
immediate supervisor/manager.
Ombudsperson
Third party, inside or outside organization, investigates and
mediates disputes. Usually not empowered to settle
grievances, but will forward dispute to further ADR
processes.
Single designated
officer
Management designates individual to receive and
investigate complaints and resolve disputes.
Chosen officer
Employee chooses arbitrator from a group of individuals.
Peer review
Panel of employees or employees/managers hears and
resolves complaint. May recommend policy changes. Often
limited to suspensions and discharges.
Mediation
Mediator facilitates discussions with disputants to
negotiate mutually acceptable solution.
Arbitration
Arbitrator hears both sides and renders a decision. May be
binding or nonbinding.
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5-39
Sherman Anti-Trust and Clayton Acts
Sherman Anti-Trust Act, 1890
• Primarily directed at monopolistic employers.
• Resulted in injunctions issued against union
activities.
Clayton Act, 1914
• Clarified and supplemented the Sherman Anti-Trust
Act.
• Minimally restricted injunctions against labor.
• Legalized peaceful strikes, picketing, and boycotts.
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5-40
Railway Labor Act, 1926
• Passed to reduce labor conflict and the
possibility of transportation strikes.
– Gave railroad employees the “right to
organize and bargain collectively through
representatives of their own choosing.”
• Covers both railroad and airline
employees today.
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5-41
Norris-LaGuardia Act, 1932
Restricted federal judicial intervention in labor
disputes.
Guaranteed the workers’ right to organize.
Eliminated arbitrary injunctions against peaceful
organized labor activity.
Made yellow-dog contracts unenforceable.
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National Labor Relations Act
(Wagner Act or NLRA)
Allows workers to
organize themselves
and bargain
collectively.
Prohibits employer
unfair labor practices.
Exempts managers,
supervisors,
agricultural workers,
domestic employees,
and family workers.
Established the NLRB,
which can:
• Conduct secretballot elections.
• Remedy ULPs.
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Labor-Management Relations Act, 1947
(Taft-Hartley Act or LMRA)
Balanced union and management rights.
Guaranteed employers their right to free speech.
Outlawed sweetheart contracts.
Mandated that unions represent all employees in the
bargaining unit.
Allowed unfair labor practice charges to be filed
against unions.
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5-44
Labor-Management Relations Act
(Taft-Hartley Act or LMRA)
Prohibited the deduction of union dues without written
consent.
Outlawed the closed shop.
Permitted states to adopt right-to-work legislation.
Established provisions for national emergency strikes
(80-day cooling-off period).
Established the Federal Mediation and Conciliation
Service.
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5-45
Labor-Management Reporting and Disclosure
Act, 1959 (Landrum-Griffin Act or LMRDA)
Provides a bill of rights for union members.
Permits closed shop exception for construction
industry.
Prohibits discrimination against nonunion members.
Protects employees from corrupt or discriminatory
unions.
© SHRM
5-46
Which of the following restores the
balance of power by making union unfair
labor practices unlawful?
A. Norris-LaGuardia Act
B. National Industrial Recovery Act
C. National Labor Relations Act
D. Labor-Management Relations Act
Answer: D
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5-47
Road to Unionization
Union-organizing
campaign
Authorization
cards/petition
Petition for
certification
Representation
hearing
© SHRM
Certification of
results (no union
elected)
Election
campaign
Election
Certification of
representative
(union elected)
Election
granted
Campaign
abandoned
Election
not
granted
Alternative
strategy pursued
5-48
Signs of Organizing Campaigns
Employers should activate rapid response teams
as soon as early signs are detected:
Changes in turnover
Unlikely job candidates
Changes in number of complaints or
complainants
Change in tone of communication
New patterns of socializing among employees
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5-49
Setting Union Strategy
• Union assesses feasibility, costs, and benefits
of organizing.
• Union considers whether to use targeted
campaign, corporate campaign.
• Tactics are weighed: inside organizing, salting,
leafleting, meetings, home visits, telephone
organizing, Internet campaigns, indirect
pressure, picketing
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5-50
Salting
• Process of using paid union organizers to infiltrate
an organization and organize its workers.
• An adverse employment action against a salt usually
results in the filing of a ULP charge against the
employer.
• Recent NLRB rulings state:
– Applicant must be genuinely interested in employment to
be protected against hiring discrimination based on union
activity (2007).
– Union must provide evidence to support payment of back
pay (2007).
– Individuals have protected right to be salts (2010).
© SHRM
5-51
Picketing
Organizational
Picketing
Induces employees to
accept the union as
their representative.
Informational
Picketing
Informs the public that
the employer is
nonunion.
© SHRM
Recognitional
Picketing
Obtains employer’s
recognition of the
union.
Bannering
Displays messages
outside targeted
employer’s premises.
5-52
Management Rights in a Campaign
Management has the right to:
© SHRM
Take the initiative.
Use line supervisors as
resource.
State an opinion.
Safeguard employee
names and addresses.
5-53
Neutrality/Cooperation Agreement
Agreement between a union and an employer under
which the employer agrees to remain neutral to a
union’s attempt to organize its workforce.
Common provisions include:
• Gag rule.
• No secret-ballot election.
• Union access to employer premises.
• Union access to personal employee information.
• Employee attendance at “captive audience”
speeches.
© SHRM
5-54
Authorization Cards
• The NLRB requires at
least 30% of eligible
employees to sign
authorization cards/
petitions before
ordering an election.
• The union typically
wants 50% of eligible
employees to sign
cards before the union
petitions for an
election.
© SHRM
Authorization for Representation Under the National Labor Relations Act
I, the undersigned employee, authorize the Union, through its agents and representatives,
to act as my collective bargaining representative in all matters pertaining to wages, hours,
and working conditions.
Name:
Home Address:
(Number and Street)
(City, State, and Zip Code)
Phone Number:
Job Classification:
Current Wage:
Signature:
Date:
• With more than a majority of
employee signatures, the
union may also demand
voluntary certification by card
check.
5-55
Petition for Certification
Petition for certification generally leads to an
election supervised by the NLRB.
Consent election
• Employer and union waive the preelection hearing.
Directed election
• Ordered by the NLRB when parties cannot consent to an
election and after a preelection hearing on unresolved
issues.
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5-56
Representation Hearing
NLRB determines if:
• The petition satisfies the requirements.
• All petitioners are eligible to join a union.
• The proposed bargaining unit is appropriate.
NLRB sets:
• Time, date, and place of the election.
© SHRM
5-57
In determining the appropriateness of a
bargaining unit, the NLRB would consider
A. if more than 50% of the employees signed
authorization cards.
B. if employees are frequently transferred across
plants or offices.
C. the percentage of temporary workers in the
proposed unit.
D. the percentage of managers and supervisors in the
workforce.
Answer: B
© SHRM
5-58
Bars to the Election Process
•
•
•
•
•
•
•
Contract bar
Statutory bar
Certification-year bar
Voluntary-recognition bar
Blocking-charge bar
Prior-petition bar
Recognition bar
© SHRM
5-59
Voter Eligibility
• Eligible employees
must be on the
payroll:
• Striking employees who
have been permanently
replaced:
– During the pay
period prior to the
direction of
election.
– During the pay
period preceding
the election date.
– May vote in any
election conducted
within 12 months after
the strike’s
commencement.
© SHRM
• Election time and place
– Employers must post
NLRB notices.
5-60
Election Campaign
Employer
Until 24 hours before the
election, management may
present speeches to
employees during work time
(“captive audience”) but may
not make promises or threats.
© SHRM
Union
Union may visit employees
in their homes or contact
them by phone or through
the Internet.
5-61
Election
• No campaigning is allowed in or around the
polling place.
• Eligibility challenges must be made before
the vote is accepted into the ballot box.
• NLRB determines validity of challenged
ballots after the election if they have potential
to affect the outcome.
© SHRM
5-62
There are 1,000 eligible employees. Of those,
800 vote. What are the minimum votes
needed by the union to win the election?
A.
B.
C.
D.
400
401
501
667
Answer: B
© SHRM
5-63
Overturning Election Outcomes
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.
© SHRM
5-64
Certification
• If the union loses, the NLRB regional
director certifies the election results.
 Results are subject to NLRB review.
 Union may opt to continue to pressure the
employer to agree to a voluntary card check.
• If the union wins, the NLRB certifies it as the
exclusive representative of the bargaining
unit.
© SHRM
5-65
Other Paths to Unionization
• Employer volunteers recognition based on
proof of majority status.
• Union convinces employer to grant recognition.
• Union convinces employer to witness its
majority status.
• NLRB orders employer to bargain with the
union if serious ULPs have been committed.
© SHRM
5-66
Union Decertification
• Terminates union representation.
• Management may not guide or support the
effort.
• At least 30% of the employees in the bargaining
unit must petition for a decertification election.
• If the petition is valid, a secret-ballot election is
held.
• A majority of the voting employees must approve
decertification. (A tie vote also removes the
union.)
© SHRM
5-67
If employees successfully vote to
decertify a union on June 30 in a given
year, when can a new election be held?
A. Within 30 days
B. Between 60 and 90 days
C. After January 1
D. After one year
Answer: D
© SHRM
5-68
Union Deauthorization
• Removes the union’s authority to negotiate or
enforce union security clauses.
• Occurs without management support or
guidance.
• At least 30% of the employees in the bargaining
unit must petition for deauthorization.
• After investigation, the NLRB orders an
election.
• A majority of the employees eligible to vote
must approve deauthorization. (Failure to vote
is the same as a vote against deauthorization.)
© SHRM
5-69
Criteria for Election Petition
and Win
Election Type
Needed for NLRB
Petition
Needed for
Election Win
Certification
30% of eligible
employees
Union needs at
least 50% plus one
of votes cast
Decertification
30% of bargaining
unit employees
At least 50% of
votes cast must be
to decertify the
union
Deauthorization
30% of bargaining
unit employees
At least 50% plus
one of eligible
voters must vote to
deauthorize
© SHRM
5-70
Rights and Responsibilities
Employer
• Exercise freedom of
speech.
• File ULP charge.
• Protect property.
• Discipline or
terminate for just
cause.
© SHRM
Employee
• Sign authorization
card.
• Form a union.
• Engage in concerted
activities.
• Strike or picket.
• Circulate petition for
redress of a grievance.
• File ULP charge.
5-71
Unfair Labor Practices
What
A violation of a right under labor relations
statutes.
Who
Can be initiated by an individual
employee, a union, or management.
How
The NLRB adjudicates ULPs in the
private sector; the FLRA or state agency
processes cases in the public sector.
Agent-principal relationship:
• Employers are responsible for managers and supervisors.
• Unions are responsible for agents and officers.
© SHRM
5-72
Employer ULPs:
Interference, Restraint, and Coercion
The NLRA prohibits employers from:
Interfering with Section 7
rights.
Statements that employees
will lose existing benefits.
Creating an atmosphere of
violence.
Promises of improvements.
Threats of relocation or plant
closings.
Surveillance or interrogation
of employees.
Statements that unionization
necessarily leads to strikes
and loss of jobs.
Inciting antiunion activity.
© SHRM
5-73
Avoiding ULPs
To avoid ULPs, do not:
T
I
P
S
© SHRM
Threaten.
Interrogate.
Promise.
Spy.
5-74
Other Employer ULPs
• Domination and unlawful support of labor
organizations
– Electromation, E. I. Dupont & Company, Crown Cork
and Seal Company, Syracuse University
• Discrimination to discourage union membership
• Retaliation against employees who file charges
or testify
• Refusal to bargain in good faith
© SHRM
5-75
Union ULPs:
Restraints and Coercion
The LMRA prohibits unions from engaging in:
Activities that coerce employees to sign authorization
cards or petitions.
Threats of physical violence.
Threats of economic reprisals.
Strikes or boycotts of neutral or third-party
employers.
© SHRM
5-76
Union ULPs:
Duty of Fair Representation
• Union must act fairly on behalf of all
members.
• Union may not ignore grievances that
have merit or base decisions on
discrimination or personal feelings.
• Union must represent nonmembers in
bargaining and grievance issues in the
same way it represents dues-paying
members.
© SHRM
5-77
Other Union ULPs
• Inducing unlawful
discrimination by
the employer
A union cannot force an
employer to commit an act in
violation of contract provisions.
• Excessive or
discriminatory
membership fees
Fees must be appropriately
based on industry wages and
practices.
• Featherbedding
The union cannot require more
workers than necessary.
• Refusal to
bargain
The union must bargain in good
faith.
© SHRM
5-78
Possible NLRB-Ordered Remedies
Possible NLRB-Ordered Remedies
Most Serious
ULP









Less Serious
ULP
© SHRM
Employer is ordered to recognize the union and begin bargaining.
Employer is ordered to reverse a decision to move a work unit or is
ordered to allow union access at the new location.
Employer is ordered to reinstate employee(s) with back pay.
Employer is ordered to provide the union access to employees.
Employer is required to read employees’ Section 7 rights to a
gathering of all employees, admit the violation, and commit to
respecting these rights in the future.
Election must be held again.
Offending party is ordered to reverse an illegal policy or cease an
illegal activity, disband an unlawfully dominated labor organization,
or take back bribes.
Cease-and-desist order is issued against the offending party.
Employer is ordered to post in the workplace a notice of employees’
Section 7 rights.
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Collective Bargaining Process
Legal and regulatory factors
Economic
conditions
Management
representation
Bargaining
subjects:
topics, issues,
and goals
Union
representation
Bargaining
precedents
Public and employee opinion
© SHRM
5-80
Collective Bargaining Subjects
Mandatory
subjects
(required by law
and NLRB)
Illegal
subjects
(unlawful by
statute)
Permissive
subjects
(voluntary)
• Overtime
•
• Benefits for retired
• Seniority
• Vacation/holidays
© SHRM
Closed shops
• Discriminatory
hiring
union members
• Settlement of
ULPs
• Neutrality
agreements
5-81
Collective Bargaining Types
Pattern
Coalition
Coordinated
Segmented
• Union
negotiates
agreements
similar to
those
existing in
the industry
or region.
• Multiple
employers
negotiate
with one
union.
• Employer
bargains
with several
unions
simultaneously but on
a separate
basis.
• Specific
issues are
negotiated
by ad hoc
committees
and then
voted on by
entire
group.
© SHRM
5-82
Contract Negotiations
• Win-win negotiation
– Principled
– Integrative
– Interest-based
• Win-lose negotiation
– Positional
– Distributive
Good-faith bargaining requires that both parties
enter into discussion with fair and open minds
and a desire to reach an agreement.
© SHRM
5-83
Violations of Good-Faith Bargaining
• Surface bargaining
• Lack of concession
• Refusal to advance
proposals and
demands
• Dilatory tactics
• Imposing conditions
© SHRM
• Bypassing the
representative
• Commission of
ULPs
• Not providing
information
• Refusal to bargain
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Other Bargaining Conditions
Unlawful circumvention
• Bargaining proposals not disclosed to the union may not be
discussed with employees.
Notice requirements
• The party desiring contract negotiation must notify the other
party of its intention to bargain a new agreement.
Duty of successor employers or unions
• Selling a majority interest in a unionized company generally
does not affect the company’s bargaining obligations.
© SHRM
5-85
Shop Provisions in RTW and
Non-RTW States
Non-RTW States
Closed Shop
Union membership is condition of
hiring.
Union Shop
New employees must begin paying
union dues within defined time period.
RTW States
Closed Shop
Union membership is condition of
hiring.
Union Shop
New employees must begin paying
union dues within defined time period.
Open Shop
Open Shop
Union membership (payment of dues)
is not required to continue employment
beyond 30 days (seven days in
construction industry).
Union membership (payment of dues)
is not required to continue employment
beyond 30 days (seven days in
construction industry).
Agency Shop
Agency Shop
Employees must pay service fee to
union.
Employees cannot be required to pay
fees to union.
Illegal
© SHRM
5-86
Costing a Contract
Cost per hour paid or worked =
Cost of labor
Number of hours paid or worked
HR can provide data for contract costing,
including:
• Workplace demographics.
• Current and historical data.
• Effects of concessions on workforce planning.
• Effects of contract on exempt or nonunionized
employees.
© SHRM
5-87
Formal Grievance Procedure
4.
Third
party
3.
Higher-level
management
2.
Intermediate supervisor
1.
Immediate supervisor
© SHRM
5-88
When handling a union grievance, you
should
A. accept informal amendments to the contract if they
are in the company’s interest.
B. avoid bias by not reviewing prior grievance records.
C. ask the union to identify the violated contract
provisions.
D. rely on the union steward’s investigation of the
grievance.
Answer: C
© SHRM
5-89
The Weingarten Case
• Deals with the rights of union employees
to have another person present during
investigatory interviews.
• Person attending must be affiliated with
the union, not an attorney or relative.
© SHRM
5-90
An employer is conducting an investigatory
interview with a union employee. According to
the Weingarten rights, the
A. employer is obligated to provide representation if the
employee cannot find anyone.
B. employee may request that a labor attorney be present.
C. employer is not required to bargain with the union
representative.
D. employee may request that the interview be postponed
for 48 hours.
Answer: C
© SHRM
5-91
Arbitration and Mediation Compared
Arbitration
Mediation
Impartial third-party arbitrator
(Tripartite arbitration panels have
one management and one union
representative and one impartial
arbitrator.)
Impartial third-party mediator
Hears and weighs evidence and
presents final decision (award)
No power to compel agreement or
impose decision; helps parties
find common ground and continue
talking
Binding if based on evidence and
contract terms (However, awards
when no contract exists may be
challenged in court.)
Nonbinding
© SHRM
5-92
Lockouts and Strikes
• Management shutdown of
operations to prevent union
Lockout employees from working
• A refusal by employees to work
Strike
© SHRM
5-93
Protected Concerted Activities
Protected Concerted Activities
• The right of a
union to strike
and to picket
© SHRM
• The right of
other employees
not to cross a
picket line
5-94
Replacement of Strikers
Strike is an
economic
strike.
Employer is not required to
displace permanent
replacement workers except
as future opportunities
become available.
Strike occurs as
the result of
ULPs.
Employer must reinstate
striking workers.
HR must take care not to create a contractual
commitment to replacement workers.
© SHRM
5-95
Secondary Boycotts
• When union attempts to influence an employer
by exerting pressure on another employer.
• Employers may lose neutrality and be subject
to union pressure in the following cases:
–
–
–
–
–
© SHRM
Ally doctrine
Single/joint employer or alter ego doctrines
Double breasting
Straight-line operations
Hot cargo clauses
5-96
Which provision would allow a union to
picket a chain of assisted-living facilities
at all of their locations?
A.
B.
C.
D.
Ally doctrine
Common situs picketing
Single/joint employer doctrines
Straight-line operations
Answer: C
© SHRM
5-97
Legality of Strikes, Picketing, and
Secondary Boycotts
Legal
Conditional by
Law
• Primary
• Organizational
picketing
and
recognition
• Consumer
picketing
picketing
• Informational
• Working
picketing
to rule
• Area
standards
picketing
• Common situs
© SHRM
Illegal
Conditional
by
law/contract
• Wildcat
• Sympathy
strike
• Jurisdictional
• Secondary
boycotts
• Sitdown
strikes
• Slowdown
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