Labor Relations and Collective Bargaining Eighth Edition

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

Chapter Outline Reducing an Agreement to Writing Contract Enforcement Rights and Prohibited Conduct Public Sector Contract Enforcement Issues

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

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

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.)

Union Security Agency shop Hiring halls Union shop Maintenance of membership Modified union shop Union security

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.)

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

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.)

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

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.)

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

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.)

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

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.)

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

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.)

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.)

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.)

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

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

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.)

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.)

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

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

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

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.)

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

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

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

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

Labor Relations and Collective Bargaining Eighth Edition