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Michael R. Carrell & Christina Heavrin. Labor Relations and Collective Bargaining Eighth Edition. www.prenhall.com/carrell. PART IV: The Labor Relations Process in Action. CHAPTER 9 Implementing the Collective Bargaining Agreement. © 2007 Prentice Hall Inc. All rights reserved.

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Michael R. Carrell & Christina Heavrin

Labor Relations and

Collective Bargaining

Eighth Edition

www.prenhall.com/carrell

PART IV: The Labor Relations Process in Action

CHAPTER 9

Implementing the Collective Bargaining Agreement

© 2007 Prentice Hall Inc. All rights reserved


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Chapter Outline

Reducing an Agreement to Writing

Contract Enforcement

Rights and Prohibited Conduct

Public Sector Contract Enforcement Issues


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Labor News

UNITED FARM WORKERS BOYCOTT GALLO WINE

In 2005 the UFW followed past boycotts of Cesar Chavez, the labor leader who organized both the union in 1962 and the successful boycott of grapes, wines, and lettuce

UFW utilized the Internet and e-mail lists of union, political and environmental groups to directly reach consumers

The issues: wages, medical coverage, vacation leave, and grievance procedures for seasonal contract workers

A1975 UFW boycott led California to adopt the nation’s only law giving agricultural workers the right to organize


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Reducing an Agreement to Writing

Duty to sign - a duty upon the parties in a collective bargaining relationship to reduce to writing and signing any agreement reached through the bargaining process

Negotiators draft the final agreement

Final agreement should be circulated for comment among non-negotiating and management personnel whom it will affect


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Nature of the labor agreement

Labor agreement is not an employment contract

Defines the union’s relationship with management

Employment contract is between the employer and the employees

Reducing an Agreement to Writing (cont.)


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Union Security

Agency

shop

Hiring

halls

Union

shop

Maintenance

of membership

Modified

union shop

Union

security


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Most contracts contain renewal provisions

Openers - clauses that allow for negotiations during the term of the contract

A majority of contracts are for at least three years

Positive relationship between increases in wage rates and the length of the contract

Employers more likely to exchange increased wages for a longer contract period

Reducing an Agreement to Writing (cont.)


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Reducing an Agreement to Writing (cont.)

Wage and effort bargain

Areas primarily covered include:

Pay scales - wages or salary paid for the job

Effort bargain - acceptable standards for performance of tasks

Premium pay - overtime, call-in pay, shift differentials, and weekend work

Contingent benefits - insurance, pensions, paid time-off, and severance pay


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Management rights

Goldberg: “Somebody has to run the plant”

Management’s right to run the operation versus the union’s quest to have a voice in the determination of working conditions

Contained in a separate section of the labor agreement that addresses:

Supervising the workforce

Controlling production

Setting work rules and procedures

Assigning duties

Controlling the use of plant and equipment

Reducing an Agreement to Writing (cont.)


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Reducing an Agreement to Writing (cont.)

Reserved rights

Residual, implied rights not found in contract language

Management retains all rights except those it has expressly agreed to share with or relinquish to the union

Plant relocation has received a great deal of attention as a subject of mandatory negotiation


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Restricted rights

Specific restrictions of management rights often found in contract clauses dealing with:

Subcontracting

Supervisory performance

Technological changes

Plant shutdown or relocation

Union rights

“Force Majeure”: release from a contract is rarely used with collective bargaining agreements

Administration

Machinery necessary to enforce the terms of the agreement

Reducing an Agreement to Writing (cont.)


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Reducing an Agreement to Writing (cont.)

Contract bar

A current and valid contract can prevent another union from petitioning for an election and being certified as the exclusive representative

Contract must be in writing and signed by all parties

Contract must be for a fixed term

Contract must provide substantive terms

Contract must be duly ratified

Contract must contain only legal provisions

Contract must not be prematurely extended


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Contract bar (cont.)

Another union may petition for representation rights

30-day window of opportunity, from 90th to 60th day prior to contract expiration

Insulated period - employees cannot petition 60 days prior to contract expiration

Reducing an Agreement to Writing (cont.)


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Contract Enforcement

Judicial proceedings

National Labor Relations Board (NLRB)

Will enforce and interpret a contract provision if an unfair labor practice is involved

May invalidate a contract or clause if it finds:

The union acted under an erroneous though good faith claim that it had majority representation

A successorship situation in which one union has dissolved or merged with another

A business has changed hands

May show support of contract or clause by interpreting the contract as a waiver of statutory rights

In this regard, may explore bargaining history of the parties


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Judicial proceedings (cont.)

NLRB (cont.)

May enforce contract when:

Employer unilaterally modifies the contract or union strikes to modify existing contract

Union has violated the act by strike action called to force bargaining on a modification of an existing contract

Court enforcement

Made possible by Taft-Hartley amendments that recognized unions as entities that could be sued and held liable

Contract Enforcement (cont.)


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Contract Enforcement (cont.)

Judicial proceedings (cont.)

Grievance procedure and arbitration

Development of arbitration rights

Arbitration not required by NLRA

War Labor Board - did not permit strikes during WWII

Resulted in a system of

adjudication of controversies

If contract provided for arbitration,

arbitration used to enforce substantive

rights granted under the contract


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Judicial proceedings (cont.)

Court and Board enforcement

Lincoln Mills - required specific performance

of employer’s promise to arbitrate

Steelworkers Trilogy - Supreme Court gave deference to arbitration as a means of contract enforcement

Collyer - NLRB agreed to defer jurisdiction in certain unfair labor practices to arbitration if:

Parties had stable collective bargaining relationship

Defendant was willing to arbitrate the matter

Dispute centered on the contract and its interpretation

Contract Enforcement (cont.)


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Judicial proceedings (cont.)

Court and Board enforcement (cont.)

NLRB decided to defer to an arbitration award if:

The arbitration is fair and is based on regular procedures

Parties are bound to support arbitrator’s decision

The arbitrator’s award is consistent with the NLRA

The award directly addresses the unfair labor practice

Contract Enforcement (cont.)


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Judicial proceedings (cont.)

Economic activity - ability to resort to a strike is an essential element in the success of the collective bargaining process

Boys Market - Court upheld injunction against a strike concerning an arbitrable grievance despite a no-strike clause and a mandatory grievance procedure

Not all strikes would be enjoined

Court supported the right to engage in a sympathy strike pending an arbitrator’s decision on whether such a strike was forbidden under the no-strike clause of the contract

Contract Enforcement (cont.)


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Rights and Prohibited Conduct

Individual rights

Right to refrain from union activities specified in Taft-Hartley

Closed shop is an unfair labor practice

Right not to organize and engage in union activity

Allowed state right-to-work laws

Union hiring halls

Require employer to hire through union’s exclusive referral system

Obligated to give equal consideration to union and nonunion job applicants

Union intimidation, reprisals, or threats against employees considered to be restraint and coercion


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Rights and Prohibited Conduct (cont.)

Individual rights (cont.)

Duty of Fair Representation (DFR)

Union must consider all employees in the bargaining unit when negotiating an agreement

Provide an honest effort to serve all employee’s interests

Make good faith effort, without hostility or arbitrary discrimination

Union must not handle contract enforcement in an arbitrary, discriminatory, or bad faith manner

More litigious matter than contract negotiation

Grievant not entitled to arbitration

Vaca v. Sipes, Bowen v. U.S. Postal Service


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Individual rights (cont.)

Due process of law guaranteed by collective bargaining agreement

Substantive - fair treatment by employer in actions taken against employee

Procedural - fair hearing on employer’s action

Rights and Prohibited Conduct (cont.)


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Duty to bargain during the contract term

NLRA - a party cannot be required to discuss, to agree to terminate, or to modify the contract during its term

Parties may limit the duty in other ways

Zipper clause - waives the right of either party to require the other to bargain on any matter not covered in an agreement during the life of the contract

Opener clause - allows negotiations to take place during the contract term on certain mandatory items

E.g., wages or specific benefits

Separability clause - protects the remainder of the contract should one section come in conflict with state or federal law

Offending section becomes null and void

Rights and Prohibited Conduct (cont.)


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Rights and Prohibited Conduct (cont.)

Duty to bargain during the contract term (cont.)

Union demand to negotiate

NLRB contends that employers have a duty to negotiate if:

There is no zipper clause

The item is not contained in the contract

The item was not discussed during negotiations

Employer’s unilateral action to alter an employment condition often produces the need to bargain during the contract term

If a stated term of the contract is changed, employer’s action is an unfair labor practice

Contract may require union consultation even when employer’s actions are purportedly management’s rights


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Rights and Prohibited Conduct (cont.)

Prohibited economic activity

Secondary boycott

Section 8(b)(4) of NLRA - prohibits union from engaging in, or from inducing others to engage in, a strike or boycott aimed at goods and services of one employer to force them to cease doing business with another employer

DeBartola v. Florida Gulf Coast Trades Council - union members may hand out leaflets in a secondary boycott action

Union liable for any damages sustained by primary or secondary employer resulting from unlawful secondary boycott

Auburndale Freezer Corporation v. NLRB (2002): union cannot boycott a warehouse storing struck goods

Primary boycott

Occurs when persons, who normally deal directly with the work involved, are encouraged to withhold their services


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Rights and Prohibited Conduct (cont.)

Prohibited economic activity (cont.)

Shop-ins

Union members converge on a store, buying small items, and paying with large-denomination bills

No information sharing or picketing

NLRB prohibited this activity


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Prohibited economic activity (cont.)

Hot cargo agreement

Negotiated contract provision stating that union members of one employer need not handle nonunion or struck goods of other employers

Outlawed by Landrum-Griffin Amendments except in the garment and construction industries

Dual employer (double-breasted) operation

Unionized employer sets up separate, similar nonunion operation

Union actions against these nonunion operations are not covered by the construction industry exemption

Rights and Prohibited Conduct (cont.)


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Rights and Prohibited Conduct (cont.)

Prohibited economic activity (cont.)

“Hot cargo” and sweatshops

Section 8(e) of the NLRA - permits apparel industry unions to require garment industry employers to do business only with union shops

Employers that use nonunion shops and low-cost factories offshore must pay a “liquidated damage” penalty to the union

Jurisdictional disputes - disputes arising from competition between unions for the same work

NLRB has jurisdiction to:

Settle unfair labor practice stemming from participation in a jurisdictional dispute

Determine which union deserves the work assignment


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Rights and Prohibited Conduct (cont.)

Prohibited economic activity (cont.)

Featherbedding

Section 8(b)(6) of the NLRA - defines featherbedding as causing “an employer to pay . . . for services not performed or not to be performed”

NLRB may order the union to:

Reimburse the employer

Cease the unlawful activity


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Public Sector Contract Enforcement Issues (cont.)

Reducing the contract to writing

Title VII of Civil Service Reform Act - either party may request that an agreement be put in writing

Contracts usually contain:

Union security clause

Valid contract bar

Merit raise system and premium pay may be covered

Grievance procedure with final binding arbitration required

Contract enforcement

Federal Labor Relations Authority (FLRA) has jurisdiction

Unfair labor practices

All arbitration awards, regardless of issue involved


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Public Sector Contract Enforcement Issues

Duty to bargain during the contract term

NFFE Local 1309 v. Department of the Interior

Supreme Court ruled that the FLRA has the authority to determine whether federal agencies and unions must engage in midterm bargaining

Duty of fair representation

Issues similar to private sector DFR

Union failed to represent the employee in dispute

Union discriminated against a nonunion member

Procedural differences from private sector

Federal employees may pursue remedies before Merit Systems Protection Board


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