LABOR RELATIONS Professor Bruce Fortado MAN 4301/6305 University of North Florida

Transcription

1 LABOR RELATIONS Professor Bruce Fortado MAN 4301/6305 University of North Florida In the early years of US history, there was no legislative framework to manage labor relations. In general, employers did not want their employees to form unions. Many of them vigorously resisted unionization. Prior to the New Deal, unions were not very successful in forming in rail, coal, steel and most other industries. Unions did form in many of the crafts. Craft workers were hard to replace. The work performed was also necessary, so wage increases could be passed on in the form of higher prices to customers. There was no election or negotiation process. The union would post the desired wage rate on the wall and strike if it was not met. In the 1880s, the craft unions formed the American Federation of Labor (AFL). Employer resistance took many forms. Employee leaders were often fired. The names of troublemakers were circulated to other employers on what became known as a blacklist. Threats were frequently made to scare people. Private detectives were often hired in large numbers (e.g. Pinkerton and Baldwin-Felts agents). Pro-union employees were spied upon. Some were followed, beaten and killed. Strikebreakers were commonly used to continue operations. The Sherman Anti-trust Act, 1890 was employed against unions to break strikes and boycotts. Injunctions could be obtained and triple damages might be assessed for interfering with interstate commerce. Many employers asked new employees to sign a document upon joining the company stating they would not join a union. These were later called yellow dog contracts. If the signers did join a union and struck, they might be evicted from company housing. Starting in 1914, some employers tried a new method. If their employees wanted a union, they would be given one, a company union. This was a union the company controlled. During WWI, the federal government encouraged companies to establish Personnel departments. Employers were very successful in resisting unionization during the 1920s. This has been termed the Open Shop movement. This was one of the top priorities for the new Personnel departments. After the communist revolution in Russia, some American employers adopted what was known as the American Plan. This referred to a propaganda campaign to tar unions as communistic and un-american. In 1926, The Railway Labor Act was passed. This was aimed at creating a structure for peacefully handling labor relations issues. The Great Depression brought many capitalistic reforms. These are often called the New Deal. In 1932, the Norris- LaGuardia Act made yellow dog contracts unenforceable and it became far harder to enjoin a strike. In 1933, Franklin Roosevelt supported the National Industrial Recovery Act. It was thought ruinous competition had created problems in many viable industries. Employers were offered a deal under this act. They could coordinate with one another and fix prices in exchange for abiding by other progressive parts of the law. These other provisions provided for among other things a minimum wage, voluntary union recognition and a labor board. One problem was this labor board had no real teeth if the law was violated. The Supreme Court struck this law down as unconstitutional. Roosevelt persisted. In 1935, the National Labor Relations Act (NLRA or Wagner Act) was passed. The Supreme Court upheld this law. The National Labor

2 Relations Board (NLRB) was created. The NLRB has two major responsibilities: namely, supervising union representation elections and hearing unfair labor practice cases. The NLRB consists of five members. These members are appointed by the President and reviewed by the Senate. The NLRB has numerous regional offices that report to them. A NLRB representative will conduct a secret ballot vote and certify the results. The NLRA created five employer unfair labor practices (ULPs). It is a ULP to interfere, with, restrain or coerce employees in exercising their right to selforganization. It is a ULP for company representatives to dominate or interfere with the formation or administration of a union. It is a ULP for an employer to discriminate in any way against employees for exercising their NLRA rights. It is a ULP to discriminate against employees who serve as a witness and testify under the act. It is also a ULP for an employer to refuse to bargain with collectively with the employees duly chosen representatives. This means employers among other things may no longer fire union organizers, threaten people, spy on them, provide bribes, close facilities in retaliation for organizing, form company unions and refuse to bargain in good faith. The AFL established the Committee on Industrial Organization to explore the possibility of organizing industry. In 1935, the delegates at the convention voted against doing so. A group broke away to form a competitive organization called the Congress of Industrial Organizations (CIO). The AFL decided to compete with the CIO in organizing industry. Sitdown strikes were effectively used to organize many rubber and auto plants, before the Supreme Court ruled them to be illegal (trespassing). After some of the competitive leaders died, the AFL and CIO merged in This was the high point for union membership as a percentage of the working population at 34%. It has declined over time to only about 12.4% today. Unions, however, are doing very well organizing government bodies and represent roughly 40% today (Dessler, 2011: 263). During WWII, wage and price controls were put in place. A War Labor Board was created to deal with labor disputes. Representatives would both mediate and arbitrate to avoid work interruptions. Nevertheless, some strikes took place. After the war, a tremendous wave of strikes took place. Public sentiment changed. Many felt unions had become too powerful and some legal changes were necessary. In 1947, the Labor Management Relations Act (the Taft-Hartley Act) was passed, amending the NLRA. A series of union ULPs was created. For example, it was a ULP for a union to restrain or coerce employees, discriminate against them or refuse to bargain in good faith. The Federal Mediation and Conciliation Service (FMCS) was created. Experienced neutrals were made available to help resolve difficult negotiations. Both sides must agree on introducing a mediator and either may eject him/her at any time. Supervisors were excluded from joining unions. Communists were no longer eligible to hold union offices. The closed shop was prohibited, except in a few specified places The Right-to-Work (RTW) was created. This meant people were free to join or not join a union and pay dues after the union won an election. There are currently 23 RTW states (Dessler, 2011: 264). In union shop states, employees are generally required to pay dues after a period such as 30 days. Under an agency shop, one must pay for the services of a union, but one need to become a member. Like the union shop, this can be ruled out in RTW states. National emergency strike provisions were put in place that could interrupt a strike for up to 80 days.

3 Televised Senate McClellan hearings ( ) were held on crime and corruption in unions. The AFL-CIO tried to lessen the likelihood of new legislation by cleaning up several unions and expelling some others that would not reform. In 1959, the Labor Management Reporting and Disclosure Act (the Landrum-Griffin Act) was passed. This provided for financial reports to the Department of Labor and provided the federal government with audit power. Minimum time frames for both local and national secret ballot elections were set forth (3 and 5 years). An open nomination period must be held. It was required that copies of the union contract be made available to each employee. No member could be fined or suspended without due process. In 2001, a group of unions broke away from the AFL-CIO to form Change to Win (Dessler, 2011: 265). The leaders of this group wanted less money to be spent on central union staff and political lobbying efforts and more to be devoted to organizing. The Employee Free Choice Act has periodically been considered in recent years (Dessler, 2011: 284). There are different versions of this proposal. One change would be to allow unions to be recognized off a representation card majority, rather than hold the current secret ballot election. Stiffer penalties for ULPs are provided for, such as double back pay with no deductions for other earnings. Further, if a new contract is not agreed upon within a specified period of time, an arbitrator may settle the issues. Union Organizing Campaigns In most of situations, union organizers are invited to come by unhappy employees. Salting refers to a person paid by the union taking a job with a company specifically to start an organizing campaign. Employers try to screen these applicants out. This is legal and once hired the person has ULP protections (Dessler, 2011: 270). Most organizers who are staff members of a union operate from outside the company. An organizing committee consisting of employees from the various units or departments will be formed to run the campaign. The people from the various units will be asked to contact people one-on-one. This is the most effective way to listen to employee concerns, feel them out and try to get people to sign representation cards. A computer database may be used to track whom has been contacted, their issues, their sympathies and whether they have signed a card. Other means, such as flyers, s and group meetings (rallies) can be employed. In order to have an election scheduled, 30% of the employees must sign union representation cards. Once an employer becomes aware of a union organizing effort, a counter campaign is often mounted and some union support is lost. Many organizers aim to obtain support from more than the 30% required to get an election. Obtaining support from 55-60% could be made a target to heighten the chance of victory. Once an election date is set, a campaign period takes place. The union must be given a list of the employees names and addresses (the NLRB Excelsior list). If an employer has a no solicitation rule, access to the employees at work may be restricted. If other groups are allowed to post things on the bulletin boards, send s or schedule meeting rooms, then the union can do likewise. If not, the union may also be kept out. Employers may hold captive audience meetings on paid work time. However, there is a 24 hour rule forbidding a captive audience meeting on the day before the election.

4 The parties normally raise many campaign issues. The employees tend to only remember a few. The union often states it will improve wages and benefits. Examples of unfair treatment may be presented. It is often argues unions can reduce favoritism and discrimination in decision making by stressing seniority in selection and assignments. A union grievance procedure offers a trained advocate at each step, just cause in disciplinary cases, and a neutral arbitrator at the last step of the process. The negotiation process offers the employees a meaningful voice, an equal place at the table and the ability to chose to strike if need be. Management will try to show current levels of compensation are good based on local comparisons. It is often said improvements do not depend on choosing a union. The cost of union dues may be raised. Union leaders may be said to be crooked, selfish or out of touch with competitive realities. The possibility of a strike and violence is sometimes brought up. The managers may urge employees to give them a chance. A simple majority of the people voting in the election will decide the matter. This means 50% +1 of the people who voted. If the union wins the election, it will be the exclusive bargaining representative for the next year. If the employer wins, the union must wait for one year before it tries to submit cards for another election. This is sometimes called an election bar. Collective Bargaining Wages, hours and working conditions are mandatory bargaining issues. There are also issues called permissible bargaining issues. This means the parties can raise these issues and the other side may choose to negotiate an agreement. However, neither side can push these issues to a strike or lockout. Some examples of such issues are placing an employee or union representative on the corporate board, using the union label and the pension benefits of retirees. Some issues fall in the prohibited category, including among others, the closed shop and any form of discrimination. The law does not require either party to make a concession on a specific issue. The legal requirement to bargain in good faith is based on the totality of conduct. Boulwarism refers to making an initial firm and final offer that will only be altered if new information becomes available and going around the union bargaining team to sell this position to the membership. Surface bargaining refers to sending a relatively powerless person to bargain, taking extreme initial positions and making few if any concessions. These types of conduct have been ruled illegal. Meetings should be scheduled at reasonable times and places. One is expected to make proposals and counterproposals. One should provide reasons for positions and reply to reasonable questions. If concessions are not made on one issue, they may be made on others. There is no requirement that the parties reach an agreement. Both sides form bargaining teams. Management will generally want a lawyer to serve as chief negotiator. The team will also often include a financial expert, and people from various levels and areas of management. The union will have an experienced chief negotiator and try to include representatives from all the large and important groups. Both sides will come up with a list of issues for discussion. On some issues, they will come up with an initial position, a target and a bottom line position. Experienced negotiators will signal that they have little room left to move by reducing the size and frequency of

5 concessions over time. A lump of sugar may be offered shortly before the expiration of the old contract in hopes of concluding a deal. The union membership must approve any agreement. They also normally vote on whether to authorize a strike. If an agreement is not reached by the deadline, a strike or lockout may take place. Since management loses profits and the workers wages, they both have an incentive to make concessions and reach an agreement. A mediator may be brought in. Mediators have no formal power. They help the parties prioritize issues, manage the schedule, provide information about what has been done elsewhere, warn of the consequences of disagreement, and suggest compromise solutions. In the public sector, strikes may not be a legal option. Fact finders are provided for in some states. These neutrals would hold a hearing. They would get the prioritized issues from both sides. These positions will be recorded in a report that may be given to the legislature and the press. In some cases the fact finder may identify where problems lie, who is being unreasonable and suggest what should be done. In some states, interest arbitration is used to settle impasses. A hearing is held. The parties positions and the rationale for them are provided. The arbitrator will then render a final and binding decision. In some cases the arbitrator may split the difference. There are states that require the arbitrator to choose the position of one side. This is called final offer arbitration. This should encourage taking reasonable positions. Grievance Processing When employees feel unfairly treated, they may contact their steward or grievance representative. In order to have a grievance, certain conditions must be met and items specified. There are normally filing deadlines specified in the contract for both initially filing a grievance and appealing it at all the successive steps. The date of the managerial decision or action must be identified. This date must be within the filing deadline, the case can no longer be pursued. All of the relevant contract articles should be specified. It is safer to list too many and drop some of them than leave one out. Management generally will not allow new provisions to be added later. There is normally a short paragraph stating what was done and alternatively what should have been done. Lastly, a requested remedy must be stated. The first step normally involves the first line supervisor. It may be oral in nature. A settlement may be reached at this or any of the subsequent steps. The second step could be a meeting with the supervisor s superior. After having a discussion with the grievance representative and grievant, a written decision will be issued. The next step in the appeal process varies. It could involve the line manager at the next level, a HR manager or the facility manager. Once the specified managerial steps are exhausted, both sides will determine if they want to take the case to arbitration. An arbitral decision is normally final and binding. If need be, it can be enforced in a court. There are only very narrow grounds for appeal: such as, bribery, mental incapacity, or exceeding the stated issues. The burden of proof reflects who must go first and establish a case. In contract interpretation cases, the burden of proof is on the union. In discipline and discharge cases, the burden of proof is on management. Just cause must be shown for discipline. A person is assumed innocent until proven guilty.