Mgmt 583

1. Mgmt 583 Chapter 12: Impasses and Their ResolutionFall 2008

2. Impasses • An impasse occurs when the parties are unable to move any further toward a settlement. • Usually when a bargaining issue falls out side either party’s tolerance limit (a.k.a. settlement ranges). • May occur when one party fails to convey enough information to facilitate a settlement (i.e., management does not explain why a work rule change is important).

3. Third Party Attempts to Resolve Impasses • Mediation • Fact-Finding • Interest Arbitration Must be voluntarily agreed To by both parties

4. Mediation • Mediation – a neutral third party is engaged to get the principals back to the bargaining table. • Relies on persuasion. • Tries to facilitate communications. • May introduce new “solutions” (recommendations) for parties to consider. • May only recommend, the recommendations are NOT binding.

5. Fact-Finding • Fact-Finding - a neutral third party who studies the issues under dispute, attempt conciliation, and (if this fails) publishes a recommendation for settlement. • Use more in the public sector. • Though the recommendation is not binding (as in mediation) it carries more weight because is published. • Uses public opinion to force a resolution.

6. Interest Arbitration • Interest Arbitration - a neutral third party imposes a settlement. • In most case the arbitrator’s award is binding on the parties. • Extremely rare in the private sector, but common in the public sector. • Who wants wage issues determined by a neutral third party?

7. When Neutral Third Parties Fail • If alternative dispute resolution fails, the following tactics are available: • Management • Lockouts. • Shut downs • Outsourcing • Unions • Strikes • Slowdowns • Corporate campaigns

8. Four types of Strikes • Economic • Unfair Labor Practice • Wildcat • Sympathy

9. EconomicStrikes • Results when there is a failure to agree to contact terms involving mandatory bargaining issues. • Strikes over permissive issues is an unlawful labor practice (Detroit Floor Decorators Union, 136 NLRB 756 (1962)). • Naturally striking over prohibited issues is an unfair labor practice.

10. EconomicStrikes • Employment rights during economic strikes: • Unions can fine members for crossing picket lines (NLRB v. Allis-Chamblers Manfg, 388 U.S. 175 (1967)). • Striking employees can be punished for: • Picket line violence (Cory Corporation , 84 NLRB 972 (1949)). • Harassment (paint balloons to fire bombings). • Sabotage.

11. EconomicStrikes • Employment rights during economic strikes (continued): • Employers have the right to maintain operations during a strike: • Hiring permanent replacements is permitted (NLRB v. McKay Radio & Telegraph, 304 U.S. 333 (1938)). • Permanent or temporary replacements are the employer’s discretion. • Striking employees cannot be fired, but can be placed on a recall roster and return only when an appropriate opening occurs.

12. Unfair Labor PracticeStrikes • The union is protesting a violation of their §7 rights • Examples: • Unilateral amendment of the CBA. • Refusing to bargain. • Employer cannot hire permanent strike replacements. • Employees return immediately to work upon the strikes conclusion.

13. WildcatStrikes • A breach of the CBA’s no strike/no lockout clause. • An unauthorized strike. • National union violates the labor code if it sends strike funds. • Can be sued for actual (not punitive) damages. • Strikers may be disciplined.

14. SympathyStrikes • One union goes on strike in support of another union’s strike. • Actually members of one union refuse to cross the picket line of another, hence a de facto strike. • Most often both unions work for the same employer. • Sympathy striker are protected under the Norris-LaGuardia Act (Buffalo Forge Co. v. United Steelworkers, 420 U.S. 397 (1976)).

15. Actions During a Strike • Union: • Strike vote is taken by the members. • National union approval is required in most instances. • Picketing is initiated to inform the public about the strike issues and to encourage them to boycott the employer’s goods or services.

16. Types of Picketing • Primary situs - union may picket a primary employer at his primary place of business. • Ambulatory site - the strike object is movable. To be lawful the following four conditions must be met: • The strike object is present on the secondary employer’s site. • The primary employer continues to engage in normal business at the common site.

17. Types of Picketing • Ambulatory site - continued. • The picketing is reasonably close to the strike object. • The picketing must clearly declare that the dispute is with the primary, not the secondary, employer.

18. Ambulatory Picketing A XXX X X X Gate Moore Dry Dock, 92 NRLB 93 (1950)

19. Types of Picketing • Common situs - typical to the construction industry. • How to reduce the affects of sympathy strikes when employees of the primary employer are working along side those of secondary employers. • Union cannot picket the entire site. • Reserved gate doctrine (NLRB v. Denver Building Trades Council, 341 U.S. 675 (1951))

20. Types of Picketing • Multiple use sites - typical to the retail malls. • How to reduce the affects of strikes a primary employer in one store in a mall without affecting neutral secondary employers. • Picket must clearly identify the store against whom they have a dispute. • Cannot interfere with access to neutral stores.

21. Other Union Methods to Pressure Employers • Slowdowns • Working to the rules. • Refusing overtime. • Corporate Campaigns • Identifying and reporting regulatory violations (OSHA, EPA, etc.). • Publicly distributing damaging information about the employer.

22. Employer Responses to Strikes • Shutdowns - wait it out. • Production is lost during the period. • Competitors may get market share. • Continued Operations • Use supervisory & nonproduction personnel. • Automated production facilities. • Strike replacements • Availability is crucial • May cause picket line violence.

23. Employer Responses to Strikes • Outsource • Preferably a nonunion employer. • May result in the Ally doctrine being invoked. • Lockout - only legal under three circumstances • Perishable goods (to avoid economic loss). • To preclude whipsawing. • To enhance bargaining position in single employer bargaining (let the union strike first).

24. Employer Responses to Strikes • Hire Strike Replacements • Depends on their availability. • Downside: future employer/employee relations may suffer. • Chapter 11 Bankruptcy • Permit use of successor employer doctrine. • See NLRB v. Bildisco & Bildsco, 465 U.S. 513 (1984).

25. Other Union Options • Slowdowns • Working to the rules • Refusing overtime • Corporate campaigns • Identifying and reporting regulatory violations • Publicly distributing damaging information about the employer.