Collective Bargaining Michael R. Carrell & Christina Heavrin Labor Relations and Collective Bargaining Seventh Edition www.prenhall.com/carrell PART II: The Collective Bargaining Process CHAPTER 4 Unfair Labor Practices © 2004 Prentice Hall Inc. All rights reserved

Chapter Outline Union Organizational Campaigns: Organizing Strategies Avoidance Strategies Unfair Labor Practices by Employers Unfair Labor Practices by Labor Organizations Duty to Bargain in Good Faith Authority of the NLRB Unfair Labor Practices in the Public Sector

Labor News NLRB Awards $2 Million to 61 Avondale Workers in Unfair Labor Practice Case Settlement the result of 9 years of litigation and 3 lengthy trials Avondale employees illegally fired for their prounion activities 52 employees received offers of reinstatement to their former jobs Avondale workers voted to join the unions of the New Orleans Metal Trades Council

Protected Employee Rights To self-organize National Labor Relations Act, Section 7 (Taft-Hartley Amendments) To form, join, or assist labor organizations To bargain collectively through representatives of their own choosing To refrain from any or all of the above To engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection

Employer Unfair Labor Practices Interfere with, restrain, or coerce employees in Section7 rights Dominate or interfere with the formation or administration of a labor union National Labor Relations Act, Section 8(a) Discriminate against union members for union membership Refuse to bargain collectively with employee representative Discriminate against employee for pursuing rights under the Act

Union Organizational Campaigns Union organizing campaigns Employer interference with employee rights Unfair of employer to interfere with, restrain, or coerce employees in exercise of their rights to unionize NLRB uses reasonable probability test that eliminates the need to prove actual interference, restraint, or coercion May have to prove intent if practice could be motivated by a legitimate and substantial business justification Organizing at the workplace Courts have devised rules to balance union’s right to conduct an organizing campaign against employer’s right to maintain a work environment Rights to access to employer’s property differ for organizers who are employees and those who are nonemployees

Union Organizational Campaigns (cont.) Union organizing campaigns (cont.) Organizing at the workplace (cont.) Protected organizing activities Oral solicitation allowed on premises during non-work times Distribution of union literature restricted to non-working times and areas Union buttons or insignias permitted unless they cause a disturbance, are a health hazard, a distraction, or are offensive to customers Access to bulletin boards and meeting halls for union activity permitted if access permitted for nonunion activity Total ban on non-business use of e-mail just to prohibit union activity is a potential violation of the Act, especially where employees rely on e-mail as a significant avenue of communications

Union Organizational Campaigns (cont.) Union organizing strategies Step 1 - Build an organizing committee Representative of all departments, shifts, races, genders, and ethnic groups Understands workers’ rights to organize Understands union’s policies, commitment to democracy Collects information about: Workplace structure Employees Employer Intangibles such as informal cliques and social networks

Union Organizational Campaigns (cont.) Union organizing strategies (cont.) Step 2 - Determine the issues Develop a program of union demands Create a strategy for union recognition campaign Step 3 - Choose a union recognition strategy Card check recognition Strike for recognition Call for an NLRB sponsored election Step 4 - Achieve union recognition or status Petition state or federal labor board Intensify union campaign prior to the election In the event of an election win, prepare to bargain

Union Organizational Campaigns (cont.) Union organizing strategies (cont.) Salting Union members encouraged to seek employment in target companies that are not unionized “Salting resolutions” - permission granted by the union to organizers to work nonunion Three types of salting Differ in terms of amount and source of compensation for organizing activities NLRB v. Town and Country Electric - employers cannot discriminate against applicants suspected of being salts or retaliate against them for organizing activities

Union Organizational Campaigns (cont.) Union organizing strategies (cont.) AFL-CIO report Organizing Committee concluded in 1996 that the union movement must focus on new organizing efforts 4 keys to success of local organizing efforts Devote more resources to organizing Develop a strong organizing staff Devise and implement a strategic plan Mobilize current members in day-to-day organizing to pressure employers New organizing tactic Become part of the corporate structure

Union Organizational Campaigns (cont.) Union avoidance strategies Convince workers that unionization will do them more harm than good Emphasize philosophy of fair dealings with all employees Discuss any involvement of union in violent or corrupt activities

Union Organizational Campaigns (cont.) Union avoidance strategies (cont.) Prohibited conduct - violations of the Act Campaign propaganda and misrepresentation Threats and loss of benefits Promise or grant of benefits Interrogation and polling of employees Good-faith reasonable doubt Surveillance Poll activity 24-hour rule

Unfair Labor Practices by Employers Employer domination and interference Domination - actual control of a union, including: Labor organization created by employer Employer’s actions infringe employees’ freedoms Interference with organizing activities of a legitimate union caused by employer’s cooperation with another union If found, NLRB will disestablish the union Employer support and assistance Support - assistance to a favored union that affects the employees’ exercise of rights guaranteed by NLRA If found, NLRB will withdraw recognition until employer support is eliminated

Unfair Labor Practices by Employers (cont.) Employee teams Union organizing typically less successful in companies that rely on employee participation groups Electromation - 5 action committees created by the employer ruled to be employer-dominated labor organizations duPont - employee-management committees that dealt with safety and recreation ruled to be employer-dominated labor organizations NLRB identified several types of communication that do not rise to the level of “dealing”

Unfair Labor Practices by Employers (cont.) Discrimination in employment Occurs when a union member is treated differently from a nonunion employee Anti-union animus Employer conduct motivated by desire to penalize or reward employees for union activity or the lack of it Two types of discrimination cases Dual-motive case - employer explains action in terms of: Legitimate business reason Reason prohibited by the NLRA Pretext case - reason for action explained differently Employer claims legitimate business reason Complainant asserts prohibited reason

Unfair Labor Practices by Employers (cont.) Discrimination in employment (cont.) Concerted activities Any action by employees to further legitimately their common interests pursued on behalf of or with other employees Issue must be work-related Goal is to further a group interest Specific remedy or result is sought Act itself is not unlawful or improper Primary strike - concerted activity for economic reason or to protest unfair labor practice Economic strikers - may be replaced or reinstated if there are vacant positions Unfair labor practice strikers - must be reinstated On Strike

Unfair Labor Practices by Employers (cont.) Discrimination in employment (cont.) Concerted activities (cont.) Union representation at investigatory interview Weingarten rule Extended to nonunion workplaces Concerted activities not protected Serious trespass Destruction of property Violence Wildcat strike

Unfair Labor Practices by Labor Organizations Restraint or coercion of employees Enforce an employee’s right not to join a union Protection to work without restraint from strikes Right to refuse to sign union dues check-off Freedom from coercion to join a particular union Union interference with elections Activities concerning representation elections apply equally to unions and employers Unions prohibited from threatening or using violence against nonsupportive employees

Unfair Labor Practices by Labor Organizations (cont.) Physical assaults or threats of violence Threats of economic reprisals Negotiate discriminating provisions in labor contract Actions that violate the Act’s amendments Urge employer to discriminate against employees Mass picketing that restrains lawful passage to workplace

Duty to Bargain in Good Faith Obligation placed on both employer and the union Nature of the duty Active participation in deliberations with an intention to find a basis for agreement Sincere effort to reach a common ground Create binding agreements on mutually acceptable terms

Duty to Bargain in Good Faith (cont.) Nature of the duty (cont.) Indications of bad faith on part of the employer Employer attempts to reach agreement with employees directly instead of with the union Employer refuses to put agreement in writing Employer refuses to make counterproposals Obligation to bargain does not compel either party to agree to a proposal or to make a concession

Duty to Bargain in Good Faith (cont.) Totality of conduct Test used to determine whether a party has bargained in good faith Boulwarism - “take-it-or-leave-it” bargaining technique Board does not consider this bargaining in good faith Unions can also use this approach Surface bargaining - simply going through the motions without any real intent to reach agreement Auction bargaining - parties state positions, make proposals, trade off on those proposals Delaying tactics - used to avoid bargaining

Criteria Used to Substantiate a Charge of Surface Bargaining history Willingness to make concessions Unfair labor practices during bargaining Character of proposals exchanged Surface Bargaining Use of dilatory tactics Employer talks directly with employee Unilateral changes Preconditions for agreement

Duty to Bargain in Good Faith (cont.) Duty to furnish information Employer must supply information that union requires to represent its constituents in collective bargaining Information requested must be relevant Financial information about the company relevant when employer claims financial hardship in meeting union demands Information must be delivered promptly and in workable form Information must be supplied on all matters related to mandatory bargaining items

Duty to Bargain in Good Faith (cont.) Refusal to bargain Labor organization obliged to bargain in good faith Must have open mind in meeting and conferring with employer Must sign any agreement that both parties have agreed upon Demanding status of exclusive bargaining agent for an inappropriate unit is an unfair labor practice

Authority of the NLRB NLRB reviews unfair labor practice charges Regional offices Claims filed Hearings held before administrative law judges (ALJ) Try to fashion informal settlements ALJ decision may be appealed to NLRB NLRB decision May be appealed to federal court Occurs in less than 3% of cases Often reflects political philosophy of appointing president Republican appointees tend to favor employers Democratic appointees tend to favor unions

Authority of the NLRB (cont.) Section 10(j): Court Injunctions Permits NLRB to seek federal court injunction to prevent actions that might cause substantial harm to the other party NLRB must demonstrate that unfair labor practice will cause irreparable harm

Unfair Labor Practices in the Public Sector Federal Labor Relations Authority (FLRA) Administers and enforces the Federal Labor Relations Act Unfair labor practices defined similarly to those in the private sector Unions and government agencies subject to unfair labor practice charges Unions file 95% of unfair labor practice charges

Unfair Labor Practices in the Public Sector (cont.) FLRA undertakes intervention techniques to assist in resolving disputes when: Numerous charges are filed by the same parties Both parties agree to the intervention process Both parties are committed to resolving their disputes Charges concern institutional and relationship issues Experience of both parties suggests that intervention may be useful Central office of the Authority provides support