Title: UNIONS AND COLLECTIVE BARGAINING
1UNIONS AND COLLECTIVE BARGAINING
2UNFAIR LABOR PRACTICES
3 8 (a) makes it illegal for employers to do the
following
- Interfere with, restrain, or coerce employees in
exercising 7 rights - Dominate, interfere with, or contribute financial
or other support to labor organization - Discriminate in hiring or terms or conditions of
employment to encourage or discourage union
membership
4 8 (a) continued
- Discharge or discriminate against employees for
filing charges or giving testimony under NLRA - Refuse to bargain collectively with the
bargaining representatives
5 8 (b) makes it illegal for unions to do the
following
- Restrain or coerce employees in exercising 7
rights - Restrain or coerce an employer in the selection
of a collective bargaining representative - Cause or attempt to cause the employer to
discriminate against employees to discourage or
encourage union membership - Refuse to bargain collectively with the employer
6 8 (b) continued
- Engage in 2ndary picketing or encourage 2ndary
boycotts - Require employees to pay excessive or
discriminatory union dues or membership fees - Cause employer to pay for services that are not
performed (feather-bedding) - Picket employer to force recognition of a union
not entitled to recognition.
7Rights of employees
- Employees need not be organized union members
- Union cannot waive rights
- Right to self-organization
- To form, join or assist labor organizations
- To bargain collectively through representatives
of their own choosing - To engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection - To refrain from these activities
8VIOLATIONS
- Intent is not required
- Antiunion remarks by employer during organizing
campaign (Gissel Packing) - Employer may make predictions based on objective
facts, factors are beyond employers control - Employer limitations on soliciting organizing
- Must have state property law protection
- Rules limiting must have a valid workplace reason
(such as safety concerns) and must be applied
uniformly to all soliciting. - Soliciting may be limited to nonworking areas and
nonworking times. - If allow personal use of telephones and email,
cannot exclude union activity. - Polling Interrogation
- Violence and surveillance
9Weingarten Rights
- Right of employee to have union representation of
their choice present at meetings that may result
in disciplinary action against employee. - 2 requirements
- Employee must actually request
- Employer who violates may still discipline
employee if has independent evidence
10DUTY TO BARGAIN
- Not surface bargaining
- Mandatory Subjects of bargaining
- Rates of pay, wages, hours of employment, or
other conditions of employment - Permissive Subjects of bargaining
11UNION COERCION
- Threats or violence directed at employees to join
union are prohibited. - Union coercion against employers prohibited.
12- In-house Unions employer formed and dominated
union - Employer support and help in soliciting are also
prohibited
13DISCRIMINATION IN TERMS OR CONDITIONS
OF EMPLOYMENT
- Exception Union Security Agreements
- Union and employer agree that employees either
join union (Union Shop Agreement) or pay dues
(Agency Shop Agreement). - Cannot fail to hire because employee is not a
union member, but employee can be require to join
within 30 days. - But, employee cannot be fired for failing to
join only for failing to pay dues. - States may pass right-to-work laws that prohibit
union shop agency shop agreements. - Employees with bona fide religious objections can
be excuses from joining.
14PREFERENTIAL TREATMENT FORUNION OFFICERS SUPER
SENIORITY
- Preferential treatment in layoffs and recall
permitted. - Preferential treatment beyond that is not
15DISCRIMINATION TO DISCOURAGE UNION MEMBERSHIP
- Failure to hire, or discharge, lay off, or
discipline employees engaging in protected
activities violates law. Examples - Striking over economic demands
- Layoffs violating seniority rules
- Disproportionately severe discipline
- Selective enforcement of rules discipline
against union supporters
16STRIKES
- If strike violates CBA, it is not protected
- Unfair Labor Practice Strike
- Protests an employers illegal actions
- Strikers may not be fired and may not be
permanently replaced - Economic Strike
- Called to pressure the employer to accept unions
negotiating demands (i.e., when negotiating a new
CBA) - Employees may not be discharged for striking, but
the employer may hire permanent replacement
workers. - Strikers are entitled to reinstatement if they
make an unconditional application for
reinstatement and if vacancies are available.
17STRIKES EMPLOYER RESPONSE
- Lockout Generally permitted
- Employer does not have to wait until a strike
occurs, but negotiations must have reached an
impasse - To prevent unionization If it is an independent
employer, not an unfair labor practice. Is a
violation if is to deter union organization at
other plants. - Runaway Shop Employer closes one shop and opens
in another location to avoid unionization. Is a
violation.
18OTHER UNFAIR LABOR PRACTICES
- Employer or union reprisals against employees who
have exercised their rights - Excessive union dues or membership fees
- Featherbedding
19REMEDIES
- Cease and desist orders
- Order offending party to take affirmative action
(may include reinstatement with back pay.) - Board may seek an injunction in federal court to
halt unfair labor practices.
20- SEE Timekeeping Systems, Inc.,
- 323 NLRB 244 (1997).
21COLLECTIVE BARGAINING
22BARGAINING
- BARGAINING IN GOOD FAITH
- Subject matter of bargaining
- Mandatory bargaining subjects
- Wages, hours, terms conditions of employment
- Permissive bargaining subjects
23RESOLUTION OF DISPUTES
- Unfair labor practice can file with the NLRB
- Violate CBA follow procedure in CBA
- Usually
- File grievance (Employee is the grievant.
Employee will be represented by the union.) - Follow internal procedures.
- Binding arbitration
24LEGALITY OF STRIKES
25TYPES OF STOPPAGES
- Primary strike
- Secondary strike
- Sympathy strike
- Sit-down strike
- Wildcat strike
- Jurisdictional strike
- Whipsaw strike
26STRIKES RECOGNIZED BY NLRB
- Economic strikes
- Employer unfair labor strike
- Union unfair labor strike
27PERMANENT REPLACEMENT OF STRIKERS
- Generally, employers can hire permanent
replacements for economic workers. - Economic strikers who unconditionally apply for
reinstatement at a time when their positions are
filled by permanent replacements - Remain employees
- Entitled to reinstatement when opening if have
not acquired regular substantially equivalent
employment - Or employer can show a legitimate substantial
business reason
28PERMANENT REPLACEMENT OF STRIKERS
- Unfair labor practice workers
- When strikers make an unconditional request to
return to work, employer may not continue to
employ the replacement workers in preference to
the strikers - An economic strike can be converted to an unfair
labor practice strike
29PERMANENT REPLACEMENT OF STRIKERS
- No preference for trainees over returning
strikers - Contractual obligations to replacement workers
can be permanent subject only to settlement
with union or Board ordering rehiring of strikers - No super seniority for replacements crossovers
30Unlawful strikes
- Secondary (against another employer) or
jurisdictional (between 2 or more unions) - Unlawful means sit-down, partial strike, wildcat
strike, use of violence.
31NOTICE REQUIREMENTS
- Written notice to other party 60 days prior to
expiration of CBA if want to modify - Notice to Federal Mediation Conciliation Service
(FMCS) http//www.fmcs.gov/internet/ within 30
days
32- No-strike agreements Are they legal?
33Norris-LaGuardia Prohibits federal court
injunctions?
- Supreme Court Decisions
- Used to compel employer to arbitrate under CBA
- Would not use to stop a strike even though CBA
had no-strike clause - So, in Boys Markets (page 551), must be an issue
parties are obligated to arbitrate - Limitations do not apply to government suits to
protect public interest from actual or threatened
national emergency strikes.
34REGULATING INTERNAL UNION CONDUCT
35Unions Duty of Fair Representation
- Judicially created, see Steele v. Louisville
Nashville R.R., 323 U.S. 192 (1944), page 573. - Includes
- Duty in Processing Grievances (See Vaca v. Sipes,
386 U.S. 171 (1967)) - Duty in Contract Negotiations
- Apportionment of damages
- Employer violated CBA
- Union breached DFR
36Rights of Union Members
- Union discipline of members
- Fines for crossing picket line
- (But workers may resign from union return to
work) - Union discipline of supervisor members
- Union members Bill of Rights.
- Equal treatment in regard to nominations
voting, assembly, free expression, appeal to the
courts government agencies. - Freedom of participation
37Unions must file annual reports with the
Secretary of Labor that include
- Name title of officers
- Fees dues required of members
- Provisions for membership qualification and
issuing work permits - Process for electing removing officers
- Disciplinary standards for members
- Details of union benefits
- Authorization rules for bargaining demands,
strikes, contract ratification
38EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA)
- Fiduciary standards for administering welfare
pension funds. - Handle funds to protect the interest of the
employees - Vesting
- Pension benefits
- Health care benefits
39FEDERAL ELECTION CAMPAIGN ACT OF 1976
- Prohibits unions from spending funds derived from
dues in connection with federal political
election campaigns. - (May establish a separate fund of voluntary
contributions.)
40ANTIRACKETEERING LAWS
- Hobbs Act (Antiracketeering Act)
- Prevents obstructing or affecting commerce by
robbery or extortion - Racketeer Influenced Corrupt Organizations Act.
(RICO) - Criminal civil penalties for anyone using
income derived from racketeering activity to - Invest in an activity
- Control an enterprise through racketeering
activity, and - Conduct an enterprises affairs through a pattern
of racketeering activity.