UNIONS AND COLLECTIVE BARGAINING

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UNIONS AND COLLECTIVE BARGAINING
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UNFAIR LABOR PRACTICES
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8 (a) makes it illegal for employers to do the
following

• Interfere with, restrain, or coerce employees in
  exercising 7 rights
• Dominate, interfere with, or contribute financial
  or other support to labor organization
• Discriminate in hiring or terms or conditions of
  employment to encourage or discourage union
  membership

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8 (a) continued

• Discharge or discriminate against employees for
  filing charges or giving testimony under NLRA
• Refuse to bargain collectively with the
  bargaining representatives

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8 (b) makes it illegal for unions to do the
following

• Restrain or coerce employees in exercising 7
  rights
• Restrain or coerce an employer in the selection
  of a collective bargaining representative
• Cause or attempt to cause the employer to
  discriminate against employees to discourage or
  encourage union membership
• Refuse to bargain collectively with the employer

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8 (b) continued

• Engage in 2ndary picketing or encourage 2ndary
  boycotts
• Require employees to pay excessive or
  discriminatory union dues or membership fees
• Cause employer to pay for services that are not
  performed (feather-bedding)
• Picket employer to force recognition of a union
  not entitled to recognition.

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Rights of employees

• Employees need not be organized union members
• Union cannot waive rights
• Right to self-organization
• To form, join or assist labor organizations
• To bargain collectively through representatives
  of their own choosing
• To engage in other concerted activities for the
  purpose of collective bargaining or other mutual
  aid or protection
• To refrain from these activities

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VIOLATIONS

• Intent is not required
• Antiunion remarks by employer during organizing
  campaign (Gissel Packing)
• Employer may make predictions based on objective
  facts, factors are beyond employers control
• Employer limitations on soliciting organizing
• Must have state property law protection
• Rules limiting must have a valid workplace reason
  (such as safety concerns) and must be applied
  uniformly to all soliciting.
• Soliciting may be limited to nonworking areas and
  nonworking times.
• If allow personal use of telephones and email,
  cannot exclude union activity.
• Polling Interrogation
• Violence and surveillance

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Weingarten Rights

• Right of employee to have union representation of
  their choice present at meetings that may result
  in disciplinary action against employee.
• 2 requirements
• Employee must actually request
• Employer who violates may still discipline
  employee if has independent evidence

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DUTY TO BARGAIN

• Not surface bargaining
• Mandatory Subjects of bargaining
• Rates of pay, wages, hours of employment, or
  other conditions of employment
• Permissive Subjects of bargaining

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UNION COERCION

• Threats or violence directed at employees to join
  union are prohibited.
• Union coercion against employers prohibited.

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• In-house Unions employer formed and dominated
  union
• Employer support and help in soliciting are also
  prohibited

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DISCRIMINATION IN TERMS OR CONDITIONS
OF EMPLOYMENT

• Exception Union Security Agreements
• Union and employer agree that employees either
  join union (Union Shop Agreement) or pay dues
  (Agency Shop Agreement).
• Cannot fail to hire because employee is not a
  union member, but employee can be require to join
  within 30 days.
• But, employee cannot be fired for failing to
  join only for failing to pay dues.
• States may pass right-to-work laws that prohibit
  union shop agency shop agreements.
• Employees with bona fide religious objections can
  be excuses from joining.

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PREFERENTIAL TREATMENT FORUNION OFFICERS SUPER
SENIORITY

• Preferential treatment in layoffs and recall
  permitted.
• Preferential treatment beyond that is not

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DISCRIMINATION TO DISCOURAGE UNION MEMBERSHIP

• Failure to hire, or discharge, lay off, or
  discipline employees engaging in protected
  activities violates law. Examples
• Striking over economic demands
• Layoffs violating seniority rules
• Disproportionately severe discipline
• Selective enforcement of rules discipline
  against union supporters

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STRIKES

• If strike violates CBA, it is not protected
• Unfair Labor Practice Strike
• Protests an employers illegal actions
• Strikers may not be fired and may not be
  permanently replaced
• Economic Strike
• Called to pressure the employer to accept unions
  negotiating demands (i.e., when negotiating a new
  CBA)
• Employees may not be discharged for striking, but
  the employer may hire permanent replacement
  workers.
• Strikers are entitled to reinstatement if they
  make an unconditional application for
  reinstatement and if vacancies are available.

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STRIKES EMPLOYER RESPONSE

• Lockout Generally permitted
• Employer does not have to wait until a strike
  occurs, but negotiations must have reached an
  impasse
• To prevent unionization If it is an independent
  employer, not an unfair labor practice. Is a
  violation if is to deter union organization at
  other plants.
• Runaway Shop Employer closes one shop and opens
  in another location to avoid unionization. Is a
  violation.

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OTHER UNFAIR LABOR PRACTICES

• Employer or union reprisals against employees who
  have exercised their rights
• Excessive union dues or membership fees
• Featherbedding

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REMEDIES

• Cease and desist orders
• Order offending party to take affirmative action
  (may include reinstatement with back pay.)
• Board may seek an injunction in federal court to
  halt unfair labor practices.

20

• SEE Timekeeping Systems, Inc.,
• 323 NLRB 244 (1997).

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COLLECTIVE BARGAINING
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BARGAINING

• BARGAINING IN GOOD FAITH
• Subject matter of bargaining
• Mandatory bargaining subjects
• Wages, hours, terms conditions of employment
• Permissive bargaining subjects

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RESOLUTION OF DISPUTES

• Unfair labor practice can file with the NLRB
• Violate CBA follow procedure in CBA
• Usually
• File grievance (Employee is the grievant.
  Employee will be represented by the union.)
• Follow internal procedures.
• Binding arbitration

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LEGALITY OF STRIKES
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TYPES OF STOPPAGES

• Primary strike
• Secondary strike
• Sympathy strike
• Sit-down strike
• Wildcat strike
• Jurisdictional strike
• Whipsaw strike

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STRIKES RECOGNIZED BY NLRB

• Economic strikes
• Employer unfair labor strike
• Union unfair labor strike

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PERMANENT REPLACEMENT OF STRIKERS

• Generally, employers can hire permanent
  replacements for economic workers.
• Economic strikers who unconditionally apply for
  reinstatement at a time when their positions are
  filled by permanent replacements
• Remain employees
• Entitled to reinstatement when opening if have
  not acquired regular substantially equivalent
  employment
• Or employer can show a legitimate substantial
  business reason

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PERMANENT REPLACEMENT OF STRIKERS

• Unfair labor practice workers
• When strikers make an unconditional request to
  return to work, employer may not continue to
  employ the replacement workers in preference to
  the strikers
• An economic strike can be converted to an unfair
  labor practice strike

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PERMANENT REPLACEMENT OF STRIKERS

• No preference for trainees over returning
  strikers
• Contractual obligations to replacement workers
  can be permanent subject only to settlement
  with union or Board ordering rehiring of strikers
• No super seniority for replacements crossovers

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Unlawful strikes

• Secondary (against another employer) or
  jurisdictional (between 2 or more unions)
• Unlawful means sit-down, partial strike, wildcat
  strike, use of violence.

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NOTICE REQUIREMENTS

• Written notice to other party 60 days prior to
  expiration of CBA if want to modify
• Notice to Federal Mediation Conciliation Service
  (FMCS) http//www.fmcs.gov/internet/ within 30
  days

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• No-strike agreements Are they legal?

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Norris-LaGuardia Prohibits federal court
injunctions?

• Supreme Court Decisions
• Used to compel employer to arbitrate under CBA
• Would not use to stop a strike even though CBA
  had no-strike clause
• So, in Boys Markets (page 551), must be an issue
  parties are obligated to arbitrate
• Limitations do not apply to government suits to
  protect public interest from actual or threatened
  national emergency strikes.

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REGULATING INTERNAL UNION CONDUCT
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Unions Duty of Fair Representation

• Judicially created, see Steele v. Louisville
  Nashville R.R., 323 U.S. 192 (1944), page 573.
• Includes
• Duty in Processing Grievances (See Vaca v. Sipes,
  386 U.S. 171 (1967))
• Duty in Contract Negotiations
• Apportionment of damages
• Employer violated CBA
• Union breached DFR

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Rights of Union Members

• Union discipline of members
• Fines for crossing picket line
• (But workers may resign from union return to
  work)
• Union discipline of supervisor members
• Union members Bill of Rights.
• Equal treatment in regard to nominations
  voting, assembly, free expression, appeal to the
  courts government agencies.
• Freedom of participation

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Unions must file annual reports with the
Secretary of Labor that include

• Name title of officers
• Fees dues required of members
• Provisions for membership qualification and
  issuing work permits
• Process for electing removing officers
• Disciplinary standards for members
• Details of union benefits
• Authorization rules for bargaining demands,
  strikes, contract ratification

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EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA)

• Fiduciary standards for administering welfare
  pension funds.
• Handle funds to protect the interest of the
  employees
• Vesting
• Pension benefits
• Health care benefits

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FEDERAL ELECTION CAMPAIGN ACT OF 1976

• Prohibits unions from spending funds derived from
  dues in connection with federal political
  election campaigns.
• (May establish a separate fund of voluntary
  contributions.)

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ANTIRACKETEERING LAWS

• Hobbs Act (Antiracketeering Act)
• Prevents obstructing or affecting commerce by
  robbery or extortion
• Racketeer Influenced Corrupt Organizations Act.
  (RICO)
• Criminal civil penalties for anyone using
  income derived from racketeering activity to
• Invest in an activity
• Control an enterprise through racketeering
  activity, and
• Conduct an enterprises affairs through a pattern
  of racketeering activity.