Labor Relations and Collective Bargaining Eighth Edition

1. Michael R. Carrell & Christina Heavrin Labor Relations and Collective Bargaining Eighth Edition www.prenhall.com/carrell PART II: The Collective Bargaining Process CHAPTER 3 Establishing a Bargaining Unit © 2007 Prentice Hall Inc. All rights reserved

2. Chapter Outline What Is Collective Bargaining? National Labor Relations Board (NLRB) Bargaining Unit Determination Bargaining Unit Determination in the Public Sector Union Structure Representation Elections Union Security Individual Rights Within Unions

3. Labor News 2004 NLRB decision on graduate students halts rise Overturns 2000 NLRB decision which required NY Univ. to recognize graduate teaching assistants (TAs) union After 2000 ruling the number of union TAs doubled in four years to 40,000 on 24 campuses: Brown, Columbia, Temple, Harvard, Cornell, Tufts, and the University of Pennsylvania TAs sought higher pay, childcare and medical benefits.

4. What Is Collective Bargaining Collective Bargaining: “A continuous relationship between an employer and a designated labor organization representing a specific unit of employees for the purpose of negotiating written terms of employment” Bargaining Unit - a group of employees recognized by National Labor Relations Board (NLRB) to bargain collectively with its employer CB begins with the negotiation of a contract, then continues with the daily interpretation & administration

5. What Is Collective Bargaining? (cont.) Price of labor Work rules Individual job rights Enforcement and administrative procedures Management and union rights Terms of Employment

6. National Labor Relations Board Created by the National Labor Relations Act (NLRA) Consists of 5 persons appointed by the President of the U.S. Must receive confirmation from Senate Guiding principles Encourage labor organizations and collective bargaining Recognize majority representation Provide prompt administrative machinery Impose sanctions or punishments for violations of NLRA

7. National Labor Relations Board (cont.) Jurisdiction of NLRB: Persons - “one or more persons, labor organizations, partnerships, associations, corporations, legal representatives, trustees in bankruptcy, or receivers” Labor dispute - “any controversy concerning terms, tenure, or conditions of employment” Affecting commerce - NLRB has authority in all but local disputes. EX: In San Manuel Indian Bingo and Casino (2004) the NLRB decided an Indian casino “affected commerce” and was under the jurisdiction of the NLRA Employees - include all workers except agricultural, domestic servants, independent contractors, persons employed by their parents, supervisors, government employees

8. Jurisdiction of NLRB (cont.) Employers - include all but U.S. government, Federal Reserve Bank, a state or political subdivision, entities subject to Railway Labor Act Labor organization - most commonly unions and other entities that represent workers to their employers National Labor Relations Board (cont.)

9. National Labor Relations Board (cont.) Preemption Concerned with activities subject to regulation by both federal and state governments Federal law typically enjoys exclusive jurisdiction If an activity is covered by Section 7 of the NLRA, state law is totally preempted Section 7 - provides for self-organization Formation of unions, collective bargaining, concerted activities, or refraining from all of the former Section 8 of the NLRA, clearly prohibits regulation by the states Section 8 - contains employer and union unfair labor practices

10. Bargaining Unit Determination Section 9(b) of the NLRA Authorizes the NLRB to decide the appropriate bargaining unit on a case by case basis NLRB has wide discretion in these decisions No legally binding formulas Rational examination of the facts of individual cases Bargaining unit Group of employees for whom the union has exclusive representation Appropriate unit Employees having a substantial mutual interest in wages, hours, and working conditions 2004 Oakwood Care CenterNLRB reversed M.S. Sturgis

11. Criteria Used to Determine an Appropriate Bargaining Unit History of bargaining Community of interest Desire of employees Statutory considerations Appropriate Bargaining Unit Stipulated units Prior union organization Relation to organization structure Accretion Public interest

12. Bargaining Unit Determination (cont.) Types of units Craft units Composed exclusively of workers having a recognized skill Distinct from others in the unit by virtue of the skilled, non-repetitive nature of its work Departmental units Composed of the members of one department in a larger organization Separate units created after examining differences in skills, training, degree of common supervision, interchange with employees outside the department, and performance rating system

13. Types of units (cont.) One employer, multiple locations a petitioned-for single-facility unit is presumed to be an appropriate bargaining unit if unit has a separate identity Centralized control v. unit mgt. Autonomy a key factor Multiemployer units Group of related employers and representatives of their workers Residual units Odd collections of workers with common work situations or proximity of work sites Bargaining Unit Determination (cont.)

14. Types of units (cont.) Remaining units Groups that are separate from primary production and maintenance units Health-care institutions units 1974 Health-Care Amendments NLRB approved 8 basic health care units Courts subsequently ruled that nurses are supervisors, and therefore, exempt from the Act Bargaining Unit Determination (cont.) • registered nurses • technical employees • skilled maintenance • all other nonprofessionals • physicians • all other professionals • business office clericals • guards

15. Bargaining Unit Determination in the Public Sector Federal Labor Relations Authority Established by Title VII of the Civil Service Reform Act Appropriate unit must promote effective dealings with agency Community of interest test used to identify bargaining unit Similar wages, hours, working rules, and conditions Maintaining a negotiating pattern based on history Maintaining the craft or professional line status Representation rights

16. Union Structure Types of unions Craft unions - “One craft, one union” Members organized on the basis of craft or skill Stringent apprenticeship programs Workers retain membership even as they move between jobs performed for different employers Labor agreements typically apply to a region rather than an employer Business agents Full-time administrator Contract administration Hiring hall Stewards Eyes and ears of the business agent

17. Union Structure (cont.) Types of unions (cont.) Industrial unions - “One shop, one union” Organizes all workers at one workplace, regardless of job Local unions typically affiliated with a national union National unions may negotiate a master agreement Local unions negotiate separate agreement covering local issues Members often join because of union shop agreement Administered by elected officials Officials typically are full-time employees at the workplace

18. Union Structure (cont.) Levels of unions Local unions Organizational component of national unions Handle day-to-day operations of collective bargaining agreement Adopt own By-laws (Ex: Figure 3-1) May fill a social role in lives of members National (International) unions Relationship with subordinate local unions determined by each union’s constitution, bylaws, and charter Officers elected to act in concert with policies established by the convention Provide services to the local unions Important political and representative role on behalf of local unions

19. BYLAWS, IBEW Local 1347 • Article 1 - Jurisdiction: Utility work performed by employees of Cinergy 1 • Article 2 - Meetings: Schedule of union membership meetings 2 • Article 3 - Election Board/Officers/Duties: The duties of Election Board members and • Officers and how elections are conducted 3 • Article 4 - Executive Board: Duties and responsibilities of members 6 • Article 5 - Business Manager: Duties and responsibilities 7 • Article 6 - Salaries: President, Vice President, Recording Secretary, Treasurer, • Executive Board, Master Stewards, Stewards, • Business Manager, Assistant Business Manager 8 • Source: Kenzie Baker, IBEW Local Union 1347, permission granted by Stephen Feldhaus, Business Manager, 2005

20. Union Structure (cont.) Levels of unions (cont.) Intermediate organizational unions Regional or district officers, trade councils, conference boards Joint councils often bring various crafts together Federation: AFL-CIO (1955) Not a union itself Composed of national and international unions Assists in mediation and resolution of disputes between affiliated unions Periodic conventions determine officers, policies, and business Executive council conducts the business of the federation in the time between conventions Change to Win (2005) , 7 unions, 6 million members elected Anna Burger 1st president, and 1st woman federation president

22. Levels of unions (cont.) Independent unions Unaffiliated with a national or international union This type of union is growing Represents primarily government and white-collar workers Open membership to employees of a specific professional occupation Tend to be more democratic than other unions Union Structure (cont.)

23. Public Sector Unions Most have roots in professional organizations that developed prior to widespread public sector collective bargaining Examples: National Education Association (NEA) Formed to advance the interests of educators Largest professional association in the world American Federation of Teachers (AFT) Affiliated with AFL-CIO American Federation of State, County, and Municipal Employees (AFSCME) Second largest public union and second largest affiliate of the AFL-CIO

24. NLRB regulates representation elections and organizing campaigns Bargaining agent is selected by a majority vote of unit members Election procedures are codified Organizing drive Impetus stems from dissatisfaction with the job Union organizer - full-time, salaried staff member who generally represents a national union Tries to convince workers about benefits stemming from unionization Management tries to convince workers that unionization will not help them Representation Elections

26. Representation Elections (cont.) Election procedures Step 1: Representation Petition RC petition - filed on behalf of an employee(s) or union to determine support for representation in collective bargaining (certification) RM petition - filed by employer to determine support for representation in collective bargaining RD petition – filed by employer, employee, or union to determine whether a recognized union still has employees support (decertification)

27. Representation Elections (cont.) Election procedures (cont.) Step 1: Representation Petition (cont.) UD petition - filed by employees to rescind a union shop agreement UC petition - filed to request clarification of composition of bargaining unit AC petition - filed to recognize a change of union circumstances Step 2: Investigation NLRB regional director determines whether to conduct an election Checks appropriateness of bargaining unit Employer must provide list of eligible employees’ names, addresses to petitioning union

28. Election procedures (cont.) Step 3: Secret Ballot Election NLRB ensures that representation election is fair and honest, gives employees “free choice” Provides precise procedures for casting, returning ballots Election may be invalidated due to actions of the employer, employees, or third parties E.g., 24 hour rule: prohibits captive audience speeches 24 hours prior to election Runoff election - may be used if more than one union is seeking representation rights if none of the choices receives a majority of the votes Representation Elections (cont.)

29. Representation Elections (cont.) Election procedures (cont.) Step 4: Certification of Election Results NLRB satisfied that results reflect the employees’ “free choice” Certification - variety of benefits to union Exclusive representation rights For 1 year, employer obligated to bargain: 2005 study found 90% of newly certified unions successfully negotiated first contract within first year. However, in previous decades union rates were as low as 60%. For 1 year, no other union can challenge representation rights

30. Voluntary recognition: “card check” or strike Employer recognizes the union without an election Rare event because SB elections regarded as the “gold standard” of employees’ “freedom of choice” May result from union pressure tactics Gissel doctrine - NLRB may issue a bargaining order in response to employer’s unfair labor practices Traditional remedies deemed inadequate to eradicate effects of employer tactics Union authorization cards considered a more reliable indicator of employee sentiment about union representation Representation Elections (cont.)

31. Decertification elections Bargaining unit votes to terminate existing union’s representation rights Rules similar to certification Reasons that members decertify a union Employer recently treated employees better Employer waged an aggressive anti-union campaign Employer moves to traditionally nonunion geographic area Majority of members believe the union is unresponsive, or workers lose confidence in union De-authorization election (UD): if a majority of the bargaining unit members decide they desire to nullify only the union shop provision in their agreement. Decertification (RD) election: if a majorityvote against the union, it no longer represents the employees in the bargaining unit. Representation Elections (cont.)

32. Representation Elections (cont.) Exclusive representation Both a practice and a principle of law Gives real power to the union’s bargaining positions Simplifies the bargaining process Facilitates consistent administration of the labor contract

33. Union Security Union’s ability to grow and to perform its exclusive collective bargaining role without interference from management, other unions, or other sources Provision in collective bargaining agreement requiring employees to join union and pay union dues as a condition of continued employment Union security clause Contained in most collective bargaining agreements Employees may have the option to choose either full or limited membership Union obligated to inform members of their rights

34. Legal background NLRA Prohibited company unions Yellow-dog contracts and blacklisting made illegal Taft-Hartley Amendments, Section 7 Guaranteed employees’ rights not to organize Outlawed the closed shop States permitted to legislate right-to-work laws Court decisions Limited the application of a union shop provision CWA v. Beck - dues cannot include funds for union’s political or fraternal activities Union Security (cont.)

35. Union Security (cont.) Forms of union security Open shop Employees not required to join union or pay dues Union shop Within 30 to 90 days of hire, employees required to join the union as a condition of employment Union hiring hall Employer required to hire workers referred by the union Union must refer both union and nonunion workers Agency shop Although workers not required to join the union, they must pay the union a representation fee

36. Forms of union security (cont.) Maintenance of membership Members must maintain membership only for contract duration Nonunion workers not required to join Miscellaneous forms of union security Preferential shop - requires the employer to give hiring preference to union members Dues “check-off” - union dues & fees deducted from employee’s paycheck Super seniority - union leaders top seniority for layoff purposes: assures continuity in union leadership Union Security (cont.)

37. Union Security (cont.) Right-to-work Section 14(b) of the NLRA States may enact laws prohibiting union or agency shops Right-to-work laws exist in 21 states with: Low union membership Little heavy industry High level of agriculture Opponents of right-to-work laws believe that: Laws strengthen the hand of management Requiring union membership not more restrictive than other work rules Union deserves support because both members and nonmembers benefit from representation Per capita income is higher in states that do not have right-to-work laws

38. Union Security (cont.) Right-to-work (cont.) Proponents of right-to-work laws Affirm the right to employment regardless of union membership Compulsory union membership means that union does not have to be responsive to its members Encourage economic development because employers are less likely to lose income due to strikes over union security issues 2004 study determined union density is significantly lower in right-to-work states

40. Right-to-work (cont.) Court rulings and right-to-work states have created two new categories of employees Free riders - employees who are represented by a union without joining the union Cheap riders - employees who are represented by a union without joining the union Required to pay a representation fee that is some fraction of regular union dues Unions helped to defeat legislation that proposed to prohibit unions from collecting dues if any part of the funds were used to affect election outcome Union Security (cont.)

41. Individual Rights Within Unions Duty of fair representation (DFR) Exclusive representation rights impose duty on union to fairly represent all employees of the bargaining unit Steele v. Louisville and Nashville Railroad Courts ruled that unions must consider all employees and make an effort to serve their interests in good faith and without hostility or arbitrary discrimination Vaca v. Sipes - employee does not have an absolute right to have a grievance pursued Breach of DFR occurs only if the union’s conduct toward the worker is arbitrary, discriminatory, or in bad faith

42. Duty of fair representation (DFR) Bowen v. U.S. Postal Service - damages apportioned between the union and the employer Date of hypothetical arbitration decision used to apportion the damages Rights to refrain from supporting a union Not joining a union Resigning union membership Paying dues only to cover costs of bargaining Individual Rights Within Unions (cont.)