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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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 just to prohibit union activity is a potential violation of the Act, especially where employees rely on as a significant avenue of communications

8. 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

9. 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

10. 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

11. 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

13. 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

14. 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

16. 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

17. 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”

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

31. 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

32. 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

33. 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