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Seaquist, G. (2015). Employee and labor relations: A practical guide . San Diego: Bridgepoint Education

In Chapter 4 we saw that a first step of unionization was for workers to identify who should be a member of the bargaining unit. Once that was established, workers in the designated bargaining unit signed authorization cards, and if at least 30% of the workers voted to unionize, the process of moving toward an election could begin. If the prerequisites were met and an election took place, the National Labor Relations Board (NLRB) certified the union, which meant it then became the exclusive representative of that bargaining unit.

Exclusive representation is an important concept that is found in Sections 8(b) and 9(a) of the Labor Management Relations Act of 1947. Those sections explicitly empower a union that represents a majority of the employees in a bargaining unit to act as all employees’ exclusive representation in collective bargaining.

Exclusive representation has a number of meanings. One is that the employer may not bargain with any other employees, no matter how well intentioned the conversation. Nor may the employer engage in discussions with another union purporting to represent some of the workers. The certified union is the only one with whom the employer may deal.

Exclusive representation obligates all workers in the bargaining unit to participate in union activities, though individuals may choose not to be a member of the union if they have that option. In many states, by law, workers cannot be mandated to join a union or pay dues as a condition of employment. These are referred to as right-to-work states. Despite the fact that the bargaining unit may include workers who do not agree with the union or its philosophy, the union has the duty to represent each worker equally and without bias, no matter their status (union or nonunion; dues paying or not).

In the News: Challenging the Right to Exclusive Representation

Twenty-seven thousand home care workers are part of a union that represents workers who are paid by the state to care for disabled or elderly patients. The National Right to Work Legal Defense Foundation filed a lawsuit in 2014, however, challenging the union’s right to exclusively represent these workers. The foundation argues that those home care workers who oppose the union are being forced to have the union represent them because under the concept of exclusive representation, all workers in the bargaining unit are represented by the union. The foundation opposes the exclusive representation concept that has been a fundamental part of belonging to a bargaining unit and argues that employees’ First Amendment right to free association is infringed on when a union employees do not support calls itself their representative.

According to an editorial in the New York Times (http://www.nytimes.com/2014/10/02 /opinion/more-hurdles-for-home-care-unions.html?_r=0), if the National Right to Work Legal Defense Foundation successfully makes this argument in court, the union will be undermined, allowing employers to pay lower wages as collective representation goes by the wayside.

Discussion Questions

Suppose the employees in a bargaining unit who oppose a union are allowed to not be represented by it. What impact would this have when it comes time to enter into negotiations for a new collective bargaining agreement?

Does the fact that home care workers are among the lowest paid professionals impact how the court should rule on representation? Why?

According to Title 29 of the U.S. Code, exclusive bargaining stipulates that the union may not discriminate against any of its members. “Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct” (29 U.S.C. § 158, 1982). Similarly, Title VII of the Civil Rights Act of 1964 makes it unlawful for a labor union to discriminate against any of its members on the basis of race, religion, sex, or national origin.

Exclusive bargaining imposes different rights and duties on employers and workers. Employers have the duty to bargain only with the chosen labor organization, and unions have the duty to represent all of the workers in the bargaining unit equally and fairly.

Procedures for Bargaining

Once a union is certified, the employer has a legal obligation to bargain with the representatives of that union. Collective bargaining is the act of management and union representatives meeting to discuss and negotiate an agreement. This simple-sounding process, however, may involve many players and take years to complete. The National Labor Relations Act does not require the parties to arrive at an agreement, nor does it require either side to make concessions, but merely to meet, discuss, and attempt to arrive at an agreement.

Although the law does not stipulate the parties must agree, it does set forth procedures for bargaining in good faith, which means that management and workers must come to the bargaining table with the intent to enter into a final agreement that will outline the terms and conditions of employment. Indeed, the law prohibits going through the motions of bargaining without intending to complete a deal; it imposes a duty on the parties to bargain with good and productive intentions. The law states:

To bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. (29 U.S.C. §158 [d])

Whether a party is truly acting in good faith is not easy to determine, but as a general rule, the NLRB will consider the totality of the circumstances should there be a question of a party’s intention. Certain characteristics of good faith have emerged over the years from decisions of the NLRB and the courts (National Labor Relations Board, n.d.d.). These include being “willing to meet at reasonable times and intervals and whether the party is represented by someone who has the authority to make decisions at the table” (National Labor Relations Board, n.d.d, para. 11). Other indications of good faith include attending the bargaining sessions, arriving on time, being prepared, supplying requested information, addressing concerns, and engaging in a candid and reasonably tempered discussion. Requesting and providing information is essential to the process (National Labor Relations Board, n.d.d.).

Examples of bad faith during collective bargaining include canceling meetings, ending meetings early, wasting bargaining session time on irrelevant matters, questioning the union’s legitimacy, and proposing patently unacceptable terms of employment (Radisson Plaza Minneapolis v. NLRB, 1993). An employer’s proposals that were deemed “unusually harsh and unreasonable were also signs of bad faith; the employer must at least propose alternatives that are reasonable” (NLRB v. A-1 King Size Sandwiches, 1984).

A union’s use of stalling tactics (FAA Concord H, 2013), withdrawing from tentative agreements (Whitesell Corporation and Glass, Molders, Pottery et al., 2011), and entering the negotiations with no intention of coming to an agreement (Triple A Fire Protection, Inc. and United Association of Journeymen, 2010) are additional examples of bargaining in bad faith.

Even actions of negotiators themselves might result in a finding of bad faith. For example, when a company’s negotiator was not prepared for the negotiations, offered unrealistic proposals, and declared an impasse prematurely, the company was found to be acting in bad faith. Likewise, it is unacceptable for either party to adopt a “take it or leave it approach” or an inflexible attitude (NLRB v. General Electric, 1969).

Subjects of Bargaining

The NLRA divides subjects discussed during bargaining into three types: mandatory, permissive, and illegal. Mandatory subjects are topics that the parties must negotiate or waive, whereas permissive subjects are those that parties may negotiate or waive. Illegal subjects are any that are prohibited from being negotiated. Examples of each subject are included in Table 7.1.

Table 7.1: Examples of mandatory, permissive, and illegal subjects of negotiation

Mandatory Subjects

Note that under the mandatory subjects category in Table 7.1, the actual terms and conditions of employment appear. These include the fundamental work issues of pay; overtime; paid leaves such as bereavement time; pension contribution amounts; and cost of living increases. Inclusion on the list does not mean there is any guarantee that the union will receive what it asks for, just that management cannot refuse to discuss and negotiate these subjects.

Sometimes, mandatory subjects encompass topics that are not explicitly included on the list. For example, in the case Brewers and Maltsters Local Union No. 6, the court considered whether hidden cameras installed by management to film employees were subjects of mandatory bargaining and should therefore have been disclosed to the union. Note that cameras and such are not mentioned in the list of mandatory subjects in Table 7.1. Nevertheless, the court considered whether such surveillance constituted a form of misconduct that is included on that list.

Anheuser-Busch was expecting a strike of its employees and as such, management became more vigilant about watching employee behavior that indicated the start of the strike. To this end, the company increased its surveillance of employees. During one of its inspections, management found a room, dubbed the “penthouse,” with several 6-foot foam pads hidden in the panel doors that housed the elevators’ electrical system, cardboard mats of a corresponding size, and a table and four chairs. The company claimed that this suggested “persons were using the room for reasons inconsistent with any work assignment and possibly illegal drug activity might be ongoing” (Brewers and Maltsters Local Union No. 6, 2005). Thereafter, a decision was made to install a camera on the roof in order to determine who was entering and exiting the penthouse, and in this way the employer recorded the comings and goings of employees.

When the union discovered that employees were being recorded, it objected, claiming that this activity should have been a mandatory subject of bargaining. The NLRB agreed, because such recording is a matter appropriate “to the working environment and not among those managerial decisions that lie at the core of entrepreneurial control. The Board further found that the installation of surveillance cameras is analogous to physical exams, drug/alcohol testing requirements, and polygraph testing, all of which” (Brewers and Maltsters Local Union No. 6, 2005) are employer investigatory tools or methods to determine whether any employees engaged in misconduct, and all are mandatory subjects of bargaining. As a result, the board held that the installation and use of cameras has the potential to affect employees’ continued employment. This is because the surveillance included cameras in areas where employees generally have an expectation of privacy and thus were not guarded about their behavior. Employees who misbehaved in such a context risked being fired or reprimanded when in fact they thought their acts were unobserved. This raises privacy concerns that impact employees’ working conditions as well as issues pertaining to discharge and discipline, all topics included under mandatory subjects. As a result, the employer was ordered to cease the behavior.

This case teaches an important lesson about what parties should negotiate at the bargaining table: All of the mandated topics on the list as well as those actions that could be interpreted as mandated topics. Employers need to think through items that are not explicitly spelled out as mandated topics, such as observing employees, but nevertheless result in being mandated topics when implemented. Since it is impossible to imagine every scenario, obtaining waivers for grey areas will protect the employer from an unfair labor practice charge.

Permissive Subjects

Whereas parties are required to negotiate mandatory subjects, they may choose to negotiate permissive subjects. Permissive subjects have different rules than mandatory ones. For example, parties may not reach an impasse over permissive subjects, only mandatory ones. Suppose a union insisted on a 1% increase to all retirees’ pensions, and management refused an increase, and an impasse was declared. This impasse would be invalidated, because the issue of retirees’ pensions is on the permissive list and thus is not subject to an impasse. The parties would be required to continue bargaining and could not stop the proceedings.

Illegal Subjects

Contrast the mandatory subjects in Table 7.1 with those topics the law has determined are illegal to negotiate over, such as a closed shop. Negotiations that would discriminate against certain workers are also not allowed, along with hot cargo agreements, which were outlawed in the Taft-Hartley Act. Should parties negotiate an illegal subject and reach an agreement, the agreement would be void because the topic is illegal.

Waiver of Subjects

The employees’ bargaining agent may waive or give up the right to negotiate any of the mandatory subject items from the list. For this to happen, however, there must be clear and unmistakable proof that the union has relinquished the right. The clearest way to do this is in a piece of signed writing called a waiver. The waiver is a written document that both parties sign that states they are waiving, or giving up, the right to negotiate a particular subject.

In lieu of signing a waiver, a shop’s past practices may allow the court to infer that the parties have nevertheless waived the subject. The inference of a waiver means that the parties have acted a certain way in the past that indicates a waiver of a certain subject. For example, in one case an employer unilaterally added shifts to a contracted schedule based on a consistent, long-standing practice of adding and removing shifts. The employer did this without collecting bids from the union or employees about the work, a mandatory subject. Since the employer’s unilateral decisions went on for so many years and was a long-standing practice, the union was deemed to have waived its right to negotiate this, even though there was no written waiver (The Courier-Journal, 2004).

7.2 The Collective Bargaining Process

Collective bargaining is essentially a negotiation. Therefore, strategies for effective negotiating also apply to collective bargaining. This section covers the stages of negotiating, the first of which is the preparation stage. Preparation involves four parts: identifying the issues, researching, strategizing, and setting the ground rules. This type of preparation may involve months of work, depending on the complexity of the issue. The next step is the actual negotiation. There is much that can be learned to become an effective negotiator, and a great deal of it involves preparing for the actual bargaining experience. Finally, preparations and negotiation should lead to an agreement, which is discussed in the last part of this section.

Figure 7.1 provides an overview of the negotiation process, from the prenegotiation period that involves gathering information, to the actual negotiation, followed by the actual collective bargaining agreement. Each of these components will be explained in detail in the following section.

Prior to Negotiations

Prior to entering negotiations, the union should identify issues it feels are most important and then research these issues, strategize its approach to them, and establish ground rules for the negotiation. Effective negotiations are the result of expertise in negotiating processes and research. All of the parties to a negotiation must be experts on the issues that will arise during the discussions. Additionally, parties need to prepare extensive information to pre-sent at the negotiations. For example, if the union is seeking a wage increase of 3%, it must be able to show management what that increase will actually cost the company and how the company will be able to pay for it. This involves a detailed investigation into the company’s finances and economic forecast over the life of the proposed contract, as explained in more detail in step 2.

Step 1: Identify the Issues

Since the end product of collective bargaining is the actual agreement, it is essential to first identify what collective bargaining should accomplish. This is referred to as identifying the issues. For example, does labor want a pay increase or more vacation time?

In general, the size and makeup of the bargaining unit determine the bargaining team’s composition. However, since many types of bargaining may take place, there is no single way to describe the process. For example, bargaining may involve a single employer with offices in numerous locations. As a result, the bargaining team may be composed of only head office staff, or it may include some local representatives. In the case of multilocation employers who bargain separately for each location, the team may be confined to local management, or it may include a representative from the firm’s head office. In single-employer, single-location bargaining, the team may consist of the company’s top management.

Likewise, union bargaining teams come in various sizes. The team could range from a lone business agent to a full bargaining committee of as many as 100 people. Union teams also require the assistance of experts in various fields, such as economists, benefit specialists, actuaries, and attorneys. In local bargaining the negotiating committee is relatively small. If the bargaining committee is elected by the local, it typically includes union officers, a business agent, and some shop stewards. In some instances a representative of a national union may assist the local union. It is usually the responsibility of the national representative to prevent local concessions from falling below the minimum industry norm established by the national union (Wagoner, 2008). For example, wages, benefits, and pension contributions may all have minimum standards acceptable to the union.

It is essential that the union representative understands what his or her constituency wants. Many unions hold town hall meetings or online campaigns in which they seek input from members about what issues are most important to them. When many locals provide input, there may be layers of meetings, from statewide to national, to which unions will send representatives. Coming to a consensus about the most important issues to achieve and which may be conceded at the table can be a painstaking and time-consuming process, depending on the size of the union. Some unions use committees for this task; others go directly to the membership for approval; and still others empower their leadership to manage the whole process.

Once the issues are identified, union representatives need to decide what they want to achieve in the negotiation. In other words, they must set objectives for the bargaining process and rank them in order of importance. Do they want to increase their pay raises or increase pension contributions by the employer? There is a general sense that for every request one side makes, it must concede something to the other. For example, if management is willing to give a pay raise, then what is the union willing to give in return?

Each team of negotiators must have a clear ranking of the very top issues with a corresponding list of concessions it is willing to make. Again, the membership can decide the priority of its wants and concessions. This can be accomplished by vote or by committee; it is up to the bargaining unit how it wishes to handle this part of the process.

Let us use a simple hypothetical example to walk through the collective bargaining process. Suppose that a contract renewal for Local 111 is looming. This local represents bus drivers who deliver emotionally disturbed elementary children to the county’s private schools each morning and return them home in the afternoons. Local 111 has 162 members and holds a monthly meeting. The previous contract lasted for 6 years and was a relative success, but two important events have taken place in the interval: (a) there have been a number of disturbances on the buses in which drivers were injured, and (b) the drivers feel that their hourly pay is falling far behind the rest of the country.

All of the drivers were well aware of the disturbance on the buses. The attacks on drivers made the local news and were the talk of the union hall for many months. A poll conducted by leadership indicated that drivers were relatively happy with their current health benefits as negotiated in the last go-round. Therefore, the union negotiating team knows it can use this item as a concession.

Step 2: Research the Issues

What research must be done? In our case with the bus drivers, negotiators will need the most current materials about how other communities deal with the issue of bus driver safety, and if improvements are to be made, what they should be and how much they will cost. Second, the drivers will also need to come to the table prepared to persuasively argue that their hourly wages are too low. Third, the negotiators should always be aware of who and what they are up against. Thorough research into the people representing the opposing side of the table is essential. Likewise, it is also important to understand what constraints they are under, where they will most likely be able to give, and what issues will be impossible to achieve. Constraints could include a known budget amount or legislation limiting the amount of the cost of living increase.

Where can we find information for each of the issues described previously? Some of the more helpful websites for gathering these types of information are provided. This is not meant to be an exhaustive list, but rather an overview of some of the places to find quality information.

Google and other search engines

General search engines tend to produce excellent articles. Most issues can be simply researched by typing in phrases and reading the resulting articles. For example, on the issue of the safety of the school bus drivers, typing “How school districts protect their drivers” into Google brought up articles from Bus Fleet magazine about strategies employed at five different school districts across New York State. Asking what the costs would be to protect drivers also indicated that bus drivers have gone on strike to demand more protection. These materials can be assimilated to make a convincing case for anything ranging from a study paid for by the school district to requesting more security on the buses. An especially helpful search engine tool is Google Scholar, which yields information that someone has already researched and that can be used as a reliable source.

The Bureau of Labor Statistics (http://www.bls.gov)

The issue of pay across the nation is well covered by the Bureau of Labor Statistics, which keeps running numbers on what workers are paid each year. For example, entering the phrase “bus drivers” in the search box on this website directs users to the information shown in Table 7.2.

igure 7.3: Risk of injury in the transportation industry compared to others, 2011

The Bureau of Labor Statistics is a good resource for research. For example, information on its website indicates that 30% of work-related injuries occur in the trade, transportation, and utilities industries. Such information could be used to put together a presentation or argument at the negotiating table.

Bureau of Labor Statistics. (2012). Does the risk of fatal injury vary by industry? Retrieved from https://www.census.gov /newsroom/cspan/safety (see slide 6)

Other relevant information can be found about the particular occupation and how easy it is to hire in this field. The Bureau of Labor Statistics keeps extensive data on occupations, including required education and work experience. Again, if the term “bus drivers” is searched, the site will direct users to information that provides the number of overall people employed in this field, their hourly wage, and annual wages, as shown in Table 7.3 from the bureau’s website.

Table 7.3: Occupational data for bus drivers

Source: Bureau of Labor Statistics, 2014c.

The U.S. Census Bureau (http://www.census.gov/main)

What if the bus drivers wanted a cost of living raise? How much of an increase should employees ask for, and what is realistic to expect? The Census Bureau’s website is a good source for this information. It keeps detailed data about occupations and raises in relationship to the cost of living. The bureau’s website has a search box in which you can type “cost of living index,” for example, to figure out the rate of inflation and its impact on the bus drivers’ hourly wages.

The U.S. Department of Labor (http://www.dol.gov)

The Department of Labor offers a wealth of information, including answers to the following questions and issues:

What is the financial strength of the union and what is its structure? Information about union finances can be found at the Department of Labor site, http://kcerds .dol-esa.gov/query/getOrgQry.do.

Who are the union officers and personnel? This can be found at the Department of Labor site Online Public Disclosure Room, at https://www.dol.gov/olms/regs /compliance/rrlo/lmrda.htm.

Previous collective bargaining agreements are available at https://www.dol.gov /olms/regs/compliance/cba/index.htm.

CorpWatch (http://www.corpwatch.org)

What about gathering information about the people on the other side of the bargaining table? If the bargaining team for management is from a corporation, CorpWatch provides information that can be of use during a negotiation, such as the salaries of executives. The tab at the top of the page called “Hands-On Corporate Research Guide” will take you to lists of websites with information about employer bargaining teams. CorpWatch also suggests going directly to the company’s website for further research. View some of the information provided at this site at http://www.corpwatch.org /article.php?id=945.

Marquis Who’s Who (http://www.marquiswhoswho.com)

This site is a good starting point for locating the names, addresses, and background information of corporate leaders. Once this information is obtained, running that data through Google or other websites such as LexisNexis (available in public libraries) and Pipl (http://www.pipl.com) may uncover even more data about the disparity between worker and management pay. For our bus driver example, First Student (http://www.firststudentinc.com) is the leading student transportation company. The website provides much information about the leaders of the company, who can then be researched on all of these sites.

Bloomberg Businessweek (http://www.businessweek.com)

Information about corporations is available on this website. For example, if the company First Student is searched, the website provides information about the officers by name. This information is available at http://investing.businessweek.com /research/stocks/private/people.asp?privcapId=4180443. In addition to names, the website provides pay information and can be used as a springboard for comparisons, such as comparing a particular CEO’s pay to others in the industry.

The Office of Labor-Management Standards (http://www.dol.gov/olms)

The Office of Labor-Management Standards’ website contains union reports and collective bargaining agreements. For example, if in preparation for negotiations, the bus drivers wanted to see what other bus drivers in the country had successfully negotiated in their contracts, this website could be used to examine other agreements and also provide language to use when formulating their requests.

Step 3: Strategizing

Watch This

This video is a good example of what happens when a union bargaining team does not meet and confer ahead of time or discuss its strategy.

Strategizing refers to planning the tactics that will be used at the bargaining table. Of utmost concern is whether the relationship is cooperative or not. If management and labor have an open and cordial relationship with a history of cooperation, then they may choose to agree on the issues at hand and also to seek objective information. For example, they might both refer to Department of Labor statistics.

However, if the relationship is contentious, then preparing for the negotiations takes on a completely different tone. In that case each side will attempt to investigate the other as much as possible, since any information could help bolster arguments. Parties may obtain their information from different sources and disagree about the reliability of the other’s source. Information in these contexts becomes a weapon for strengthening partisan arguments and coercing concessions. For more information about collective bargaining, the AFL-CIO provides an interesting fact sheet located at http://www.aflcio.org/Learn-About-Unions/Collective-Bargaining /Collective-Bargaining-Fact-Sheet

Step 4: Setting Ground Rules

After a strategic route has been established, union members must designate and approve which representatives will negotiate on their behalf. Usually a team, rather than an individual, is designated, and the number of people on the team depends on the size of the bargaining unit it will represent. For example, if a union local is negotiating a contract for its unit, the team might be composed of three members who will do the bargaining, with support from the national in terms of attorneys or experts such as economists. However, if a large multinational, multistate agreement will be bargained, in which many locals are represented by a national union, then the team may consist of many members. In this case one person should be the spokesperson for the team, in order to present a united front.

The parties will draw up ground rules, which dictate how the negotiation will take place. These may include who will represent each side; where the meetings will take place; what the time frame will be (for example, 3 hours); how proposals and counterproposals will be handled; whether meetings will be filmed; standards for confidentiality; and so on. Figure 7.4 shows an example of ground rules for negotiations between the Association of Professional Flight Attendants and American Airlines.

7.3 Impasse

It is not unusual for parties to negotiate in good faith yet still not reach an agreement on basic terms. Often they will regroup and return to the table in the hope that their differences can be worked out. Meetings will be scheduled to comply with the calendars of management, negotiators, and labor representatives and may extend over months, with meetings occurring regularly.

There are times, however, when the parties cannot reach an accord and realize that they will never be able to do so. This situation is called an impasse. Quite simply, an impasse is when the parties have come to the table in good faith with the desire to reach an agreement, but are deadlocked. As one court defined it:

that point at which the parties have exhausted the prospects of concluding an agreement and further discussions would be fruitless. . . . The Board and courts look to such matters as the number of meetings between the company and union, the length of those meetings, and the period of time that has transpired between the start of negotiations and their breaking off. (Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete, 1988)

The NLRB generally considers five factors when concluding that the parties have reached an impasse. These factors include “(1) the bargaining history, (2) the good faith of the parties in negotiations, (3) the length of negotiations, (4) the importance of the issues over which there is disagreement, and (5) the contemporaneous understanding of the parties as to the state of negotiations” (Earle, 1988). These factors are designed to determine whether further bargaining would be futile. Understanding impasse is important because there are numerous legal ramifications that might result from its occurrence. We will discuss each one in the sections that follow.

Impasse as an Unfair Labor Practice

If the parties reach an impasse because management refuses to concede on an issue, the employees may suspect that the employer is forcing an impasse; that is, using it as a delaying tactic. The union may take the matter to the NLRB and ask it to charge the employer with an unfair labor practice. (Recall from the previous section that delaying tactics are considered bargaining in bad faith.)

If the NLRB determines that the employer has committed an unfair labor practice, it may order the employer to cease and desist from the conduct and perhaps take such affirmative action as returning to the bargaining table, concluding the contract in good faith, or restoring employees to their jobs, previous positions, or shifts. Note that none of these outcomes is especially troubling for the employer, because requiring the employer to return to the bargaining table after a lengthy impasse may have allowed it to regroup or reenergize. For this reason, some observers of this tactic believe it encourages employers to engage in an impasse (Fisk & Pulver, 2009).

Impasse With Unilateral Action

If the parties have reached an impasse and the employer is not charged with an unfair labor practice, the employer may take unilateral action—that is, one-sided action that lacks the agreement of the other party—so long as it pertains to a mandatory bargaining subject.

For example, assume that employees have asked for a 2% raise, which the employer refuses; instead, the employer agrees to a 0.5% raise. The talks grind to a halt, with neither party willing to make a concession. Assuming that this situation would qualify as an impasse, the employer may now unilaterally impose the 0.5% wage increase. This is because the employer is permitted to impose unilateral changes on terms and conditions of employment as long as they were part of the bargaining process; that is, a mandatory term that was discussed but not agreed on.

Some critics of U.S. labor policy believe that an impasse with unilateral action encourages employers to purposefully create an impasse. The employer has no incentive to reach an agreement, because the employer can bargain until a deadlock and then refuse to bargain further (Fisk & Pulver, 2009). If the employer can cause an impasse that stalls talks for years, this delay costs the union momentum. Workers will want to return to their jobs. As a result, the union may be willing to concede on important issues to avoid an impasse or be more willing to concede over time as the impasse drags on, making it an effective tool for management to eventually get its way. Both are situations that do not benefit the union.

Impasse With Strikes and Lockouts

Let us take the same wage example and add more factors. Suppose the workers threaten to go on strike unless they receive a 2% wage increase. The employer refuses, and the workers go on strike. The employer then locks them out of the business so that they cannot come to work. Now the parties are at an impasse with both a strike and a lockout.

The legal implications of a strike in such circumstances depend on whether the employer committed an unfair labor practice. For example, let us assume that the employer offered a 0.5% raise knowing this was objectionable to the employees and would lead to an impasse. In such a circumstance the NLRB could find the employer was not bargaining in good faith. If a strike takes place as the result of an unfair labor practice, it is deemed by law to be an unfair labor practice strike. In an unfair labor practice strike, the employer must allow workers to resume their jobs when the strike is over.

Suppose, on the other hand, that the parties reached an impasse and the workers strike to protest the employer’s unwillingness to give them a raise. This would be a different type of strike, called an economic strike. In this scenario the employer has not committed an unfair labor practice and is also allowed not just to hire replacement workers but to allow them to permanently replace the strikers. In effect, the strikers have lost their jobs as a result of going on strike.

This is an important point, and one on which to reflect. Throughout this text, we have identified employees’ primary weapon as the ability to shut down a business through a work stoppage. This weapon is not effective, however, if it means that jobs are lost. Taken a step further, the loss of the strike as a weapon means that unions have diminished power when they come to the bargaining table than they had in earlier years.

7.4 Role of the Federal Mediation & Conciliation Service

When complications arise during collective bargaining, a federal agency known as the Federal Mediation & Conciliation Service (FMCS) stands ready to assist with negotiations before a collective bargaining agreement comes to an end. In Chapter 8 we will explore the role of this agency as it pertains to arbitration. However, the agency can also play a significant role in collective bargaining.

The National Labor Relations Act requires notice to the FMCS 60 days prior to the expiration date of a proposed termination or modification of a collective bargaining agreement. Section 8(d)(1) creates a duty to send a written notice to the other party 60 days prior to the expiration date and an offer to meet in order to negotiate a new or modified contract. Once the notice is received, it is routed to the regional manager, who assigns a mediator.

FMCS offers two types of dispute resolution. The first is called collective bargaining mediation. In this type, the mediators work with the contract negotiators to make suggestions and guide them through the bargaining process. The mediators have no say in the actual outcome, nor do they have the authority to impose an outcome. All they have at their disposal is their experience and talents as persuasive and convincing individuals who can help the parties come to an agreement.

The second type of mediation service provided by the FMCS is called interest-based bargaining, which takes a different type of approach. It is based on understanding the position of the other side with the goal of helping each side realize they have the same interests, which will lead to mutual respect and openness to the other side’s requests.

The FMCS describes the principles behind interest-based bargaining this way:

· “Sharing relevant information is critical for effective solutions.

· Focus on issues, not personalities.

· Focus on the present and future, not the past.

· Focus on the interests underlying the issues.

· Focus on mutual interests, and helping to satisfy the other party’s interests as well as your own.

· Options developed to satisfy those interests should be evaluated by objective criteria, such as statistical materials prepared by an outside source like the Department of Labor, rather than power or leverage.” (FMCS, n.d.b.)

The theory behind collective bargaining—that it reduces the power differential between management and workers—is mere idea until the parties come to the table. It then becomes an action and a process that involves much preparation. Before either side comes to the table, the issues must be identified and researched, a negotiation strategy decided upon, and ground rules for the interaction established. There are many types of bargaining, and no single way to describe every process; the type of relationship between management and labor determines how each side will prepare for negotiations. At the end of the process, the parties will want to reach an agreement that is acceptable to their respective constituencies and walk away from the process with a sense of pride, dignity, and accomplishment.

8.1 Dispute Resolution

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8.1 Dispute Resolution

The term dispute resolution refers to a process, formal or informal, by which people attempt to solve differences between themselves. There are three major types of dispute resolution: negotiation, mediation, and arbitration.

This chapter follows the collective bargaining chapter because approximately 97% of all collective bargaining agreements have a grievance procedure (Craver, 1990); breaching the agreement results in arbitration. Therefore, understanding the grievance procedure is a natural progression from collective bargaining.

Despite its direct relationship to collective bargaining, dispute resolution is not unique to labor unions or management. It is a tool used in every facet of life, one you have likely personally used no matter your background or employment history. For example, when you have worked out with family and friends matters as mundane as what to have for dinner, which movie to attend, or where to go on vacation, you have negotiated an agreement and/or participated in dispute resolution.

Everyone has practice with negotiating, but there are other types of dispute resolution: mediation and arbitration. These are also tools that can be used both in a labor context and elsewhere; in other words, they are not limited in their application. This is because grievances arise in every context, whether on the world stage, in a family, among roommates, or in the workplace. Grievances can run the gamut from petty complaints that are quickly resolved to serious allegations such as sexual harassment.

In the workplace a grievance is “a claim by an employee that he or she is adversely affected by the misinterpretation or misapplication of a written company policy or collective bargaining agreement” (Society for Human Resource Management, 2012). Disagreements will exist in a business regardless of whether it is public or private, unionized or not. As a result, places of employment should have a procedure that allows employees to resolve disagreements with dignity and respect. Negotiation, mediation, and arbitration are the key components of that procedure.

Grievance Procedure

There is no particular form of grievance procedure, nor is there a law that mandates a workplace have one. Creating a procedure is completely voluntary. A grievance procedure is a creature of contract: It might be written in an employee handbook or the collective bargaining agreement. The procedure may begin with an informal resolution process, such as discussing a complaint with a supervisor, and progress from there to negotiation, then mediation, and finally, arbitration. How detailed and layered these procedures are depends on the business and its needs.

Recall, however, that one of the chief complaints workers have against employers, and one of the main reasons they choose to unionize, is the perception that employers make unfair decisions or punish employees differently for the same offense. Therefore, from a preventive standpoint, having a procedure in place may help create a work environment perceived as fair and evenhanded.

Some businesses choose not to have a written grievance procedure, preferring instead to deal with individual complaints on an individual basis. One reason is often the expense of hiring an attorney to write the procedure, which may cost thousands of dollars. The consequences of not having a procedure, however, can be catastrophic.

Court cases illustrate that problems not resolved through a grievance procedure may escalate and end up in court, where the matter is turned over to an outside third party—the judge and/or the jury—who will decide the matter. The result may cost millions of dollars, far outweighing the initial outlay to hire counsel. It is strongly advised to put a procedure in place, in consultation with one’s employees, so that the business can quickly and quietly take care of problems before they proliferate, become public, or end in litigation.

Grievance Processes and Possible Employment Relationships

One way to consider the grievance process is in the context of the four types of businesses or entities. These are:

a private business without a union,

a private business with a union,

a public entity that is unionized, and

a public entity that is not unionized.

Private Business, Without a Union

A private business is one that is not governmental, and without a union means the workers have not organized, nor are they recognized under a collective bargaining agreement. As already noted, such a business is under no legal obligation to develop or implement a grievance procedure. Yet consider what would happen in the event of the following scenario: An employee named Joshua who works at a private, nonunionized business is hired to run one of the printing presses during the 9:00 a.m. to 5:00 p.m. shift. One night while working near the press, Joshua gets into a physical fight with another employee and is fired. Joshua wishes to bring a grievance about the fact that he was fired, because he did not start the fight and he wants his supervisor to understand he was acting in self-defense.

In a private business without a union, there is no collective bargaining agreement that defines what happens in the event such an issue arises. Employees in such a business can be divided into two types: at-will employees and those with an employment contract. If an employee has an employment contract, his or her employment is for a term, or certain length of time. At-will employees, however, can be fired for any reason that is not protected by law.

For example, suppose that company A decided to fire worker B because he is a Methodist. Since the practice of religion is protected, firing a worker because of religious beliefs would be illegal. However, if worker B is fired because he was in a physical fight, that behavior is not protected. If worker B was an at-will employee, he could be fired for fighting because as an at-will employee he can be discharged for any reason at any time.

Term employees, on the other hand, are hired for a particular length of time, such as 1 year. If a term employee punched a coworker, the company would generally have to honor its commitment to him for 1 year unless there was a written agreement that contained information about how to discharge employees for cause. For cause means “for a reason,” and examples include fighting, drug use, and threats of violence. These might be listed in the individual’s contract, in an employee handbook, or some other agreement that would dictate what to do in the event of discharge, or termination of employment.

If, in the same scenario, the employer had a handbook with a grievance procedure, then before the employee was terminated, the employer would have to follow its own internal procedures for termination. Perhaps the employee has the option under the handbook to have a hearing prior to termination. If the handbook grants such a right to employees, the employer is obligated to follow its own set of rules; otherwise, there is no such right. Figure 8.1 offers an example of a grievance procedure.

Figure 8.1: Sample grievance agreement at a private company

Some private businesses develop and enforce a grievance procedure even though they are not legally obligated to do so.

Notice that in step 1 of the grievance procedure, the company has a designated point person to handle grievance procedures within the company. This is important since it makes the company aware of the problem, keeps the problem centralized, and makes someone in the business accountable for overseeing the dispute.

Step 2 of the procedure sets out timelines for when things will happen. This is important since both the employer and employee will want to resolve the dispute so that business can return to normal. There is a downside to time requirements, however. If they are in the policy but not followed, the courts might find that this is a violation of the company’s policy and find in favor of the complainant, no matter what the grievance. Failure to follow an internal grievance procedure is a serious matter.

Also note that this procedure allows an employee of the company—an HR specialist—to make the decision regarding this dispute. There are numerous instances in which such an arrangement is unwise. For example, if the employer is viewed as unfair in the first place and allows an employee to make a determination, this might exacerbate a controversy.

Private Employer With a Union

If this same private employer’s workers were unionized and that union had a collective bargaining agreement in place, then the distinction between at-will or term employees would likely not matter. Instead, once Joshua’s fight occurred, all of the rules and regulations regarding him would fall under the collective bargaining agreement, which would set out a procedure for how to bring a grievance.

Typically, this involves bringing a complaint to an immediate supervisor, usually in writing. Grievances are then reviewed by the supervisor and a union representative, who may then decide whether a grievance exists. If a grievance is deemed to exist, there may be a hearing with a union representative present. The formality of the hearing depends on the employer; some places of business have a preset committee of workers and supervisors, whereas others will constitute a committee when the grievance arises. If the matter still remains unresolved, the company may bring in a mediator or arbitrator to resolve the issue. What most grievance procedures have in common is union representation and a process by which to consider the employee’s complaint (Society for Human Resource Management, 2012).

Public Employer With and Without a Union

If the employer is a governmental entity, then a different set of rules applies. If the employees are not members of a union, then the rules vary from one state to the other, often in the form of state civil service laws, which will dictate whether employees can be terminated and for what reasons. To review an example of a state entity’s grievance procedure, click here to see the procedure for classified civil service employees in the State University of New York system of colleges and universities.

If the governmental entity does have a union with a collective bargaining agreement, then it might have a grievance procedure similar to the one illustrated in Figure 8.2, which shows the procedure for a grievance in Santa Barbara County, California, as it pertains to the union of physicians and dentists working for that county.

8.2 Negotiations

Watch This

The ability to negotiate can be learned. The following video, titled The Art of Negotiation, provides advice about how to negotiate and offers actionable tips for enhancing negotiating skills. It features Stan Christensen, a negotiator for midmarket technology companies. Click here to watch the video.

As you watch the video, make a list of the points Christensen makes about negotiating.

The most common method of resolving a dispute is through informal negotiations such as discussing differences and coming to a conclusion about how the matter will be resolved. An informal negotiation is one that has no preset structure. The parties are free to resolve the matter via any approach that works.

For example, suppose an employee has a coworker with poor personal hygiene. The employee may complain about the situation to his or her supervisor, who might then speak with the coworker to resolve the matter. Nothing is written, there is no hearing, and other employees or management do not get involved. Instead, the parties solve the issue among themselves to arrive at a mutually satisfying resolution. This form of informal problem solving takes place in businesses all the time, likely thousands of times a day across the country.

Many issues cannot be resolved informally, because the parties are too entrenched in their beliefs to compromise. In the event that an informal negotiation fails or is not possible, it is often helpful to bring in a third party to resolve a grievance. These types of dispute resolution are discussed in the following sections.

8.3 Mediation

Mediation is a process whereby a third party, a mediator or a neutral, is brought into the negotiations to help the parties resolve their issues. Mediation has become an important tool, partially due to the many mandates issued by state and federal courts requiring parties to try mediation prior to coming to court. The Alternative Dispute Resolution Act of 1998 (28 U.S. Code § 651, 1998) authorizes every U.S. district court to require litigants in all civil cases to consider using the alternative dispute resolution process. Familiarity with mediation is important for everyone in business because it is a highly useful and popular tool.

It is important to note that the mediator does not resolve the dispute or find one party right and the other wrong; instead, the mediator helps the parties arrive at a mutually satisfying conclusion. This is important because the parties themselves have to work out their differences; the mediator merely facilitates the process. When parties work out their own differences, they tend to abide by the final agreement. In this way mediation is distinguishable from arbitration, in which the arbitrator makes the decision.

Mediation has numerous benefits. It is held in private and can be completed fairly quickly. The only cost is hiring the mediator, and depending on the type of dispute and how long it takes to resolve, the cost might be minimal. Although fast, inexpensive, and private, the downside to the process is that the mediator cannot force a decision; only the parties can. If they are unable to do so, then the matter cannot be resolved by mediation and will move on to arbitration. Another disadvantage is that if the parties come to a successful resolution and draw up an agreement or contract, and one of the parties breaches that contract, the dispute may end up in court when the nonbreaching party tries to enforce the agreement by suing the other party for breach of contract.

Because of mediation’s numerous advantages, however, it is beneficial to require the process in all disputes. To do so, the employer should mandate mediation in the collective bargaining agreement and/or employment contract. An example of what a mediation clause looks like is found in Figure 8.3.

Mediation clauses should also set out where the parties will meet, who will be present in the room, whether recording of the proceedings is permissible, how long the parties will meet per day and for how many days, who in the place of business will handle the grievance procedure, and who is accountable for getting the matter resolved. It is important to have detailed rules regarding dates, such as how long a party has to submit a grievance to the employer.

Watch This

Understanding what mediators do is easier when you have the opportunity to see a mediation actually taking place. Numerous videos are available that show people conducting mediations, some well and some poorly. To view a video that describes what mediation is, click here .

To view a video that introduces the mediation process, click here .

To view a video that provides a four-step introduction to mediation, click here .

One entity that assists with mediation is the American Arbitration Association (AAA), a large nonprofit organization that helps parties with all types of dispute resolution. The AAA provides a wealth of dispute resolution materials that are available online at no cost. For example, the booklet titled Drafting Dispute Resolution Clauses. A Practical Guide includes suggested language for a collective bargaining agreement (or any other type of agreement, such as an employment contract), to help specify what will happen in the event the parties disagree. This organization has also compiled lists of mediators and their hourly rates. In addition, the AAA runs training programs and online courses for people interested in the field of mediation. To view the American Arbitration Association’s website, visit www.adr.org . To view the AAA’s educational resources, click here .

The AAA also offers online mediation for a flat fee of $200. The mediator communicates with the parties via a chat room and instant messaging. The mediator can meet with each party confidentially and then come back into the chat room, where all three can discuss a possible outcome. Since the mediator is appointed within 48 hours of receiving the responding party’s agreement to mediate, the cost is low and the process is efficient. This is an appealing way to settle a dispute, but is limited to cases involving a claim of $10,000 or less (Mediation.org, 2014).

Cities, towns, and counties throughout the United States also have dispute resolution centers where mediators can be located and hired. Many such centers offer mediation services for low hourly rates. There are varying state rules pertaining to mediation. These, too, are available online.

Mediation clauses should also set out where the parties will meet, who will be present in the room, whether recording of the proceedings is permissible, how long the parties will meet per day and for how many days, who in the place of business will handle the grievance procedure, and who is accountable for getting the matter resolved. It is important to have detailed rules regarding dates, such as how long a party has to submit a grievance to the employer.

Watch This

Understanding what mediators do is easier when you have the opportunity to see a mediation actually taking place. Numerous videos are available that show people conducting mediations, some well and some poorly. To view a video that describes what mediation is, click here .

To view a video that introduces the mediation process, click here .

To view a video that provides a four-step introduction to mediation, click here .

One entity that assists with mediation is the American Arbitration Association (AAA), a large nonprofit organization that helps parties with all types of dispute resolution. The AAA provides a wealth of dispute resolution materials that are available online at no cost. For example, the booklet titled Drafting Dispute Resolution Clauses. A Practical Guide includes suggested language for a collective bargaining agreement (or any other type of agreement, such as an employment contract), to help specify what will happen in the event the parties disagree. This organization has also compiled lists of mediators and their hourly rates. In addition, the AAA runs training programs and online courses for people interested in the field of mediation. To view the American Arbitration Association’s website, visit www.adr.org . To view the AAA’s educational resources, click here .

The AAA also offers online mediation for a flat fee of $200. The mediator communicates with the parties via a chat room and instant messaging. The mediator can meet with each party confidentially and then come back into the chat room, where all three can discuss a possible outcome. Since the mediator is appointed within 48 hours of receiving the responding party’s agreement to mediate, the cost is low and the process is efficient. This is an appealing way to settle a dispute, but is limited to cases involving a claim of $10,000 or less (Mediation.org, 2014).

Cities, towns, and counties throughout the United States also have dispute resolution centers where mediators can be located and hired. Many such centers offer mediation services for low hourly rates. There are varying state rules pertaining to mediation. These, too, are available online.

8.5 Careers in Dispute Resolution

Many students become interested in becoming a negotiator, mediator, or arbitrator after learning more about what each does. Many local and state governments need these positions in order to staff hearing panels for government agencies. The following information will help you learn more about how to become a mediator, arbitrator, or labor organizer.

Mediators

Effective mediators are created, not born, and training requires both classroom and clinical experience.

There are many websites that provide information on how to become a mediator and demonstrate what mediation actually looks like. The FMCS hosts an information channel on YouTube, with case studies (found here ). One such video is titled FMCS Success Story: Dominion Virginia Power and IBEW, in which the agency helped Dominion Virginia Power and the International Brotherhood of Electrical Workers Local 50 achieve a positive outcome to a dispute. To view the video, click here . Another good site is Mediation.org, which is a division of the American Arbitration Association. This organization also provides training for new mediators. If you are interested in a career as a mediator, visit Judicial Arbitration and Mediation Services, available here . In addition, review the article “So, You Want to Be a Mediator?” located here .

To learn more about the Federal Mediation & Conciliation Service or to access its resources, visit http://www.fmcs.gov/internet .

Arbitrators

Becoming an AAA arbitrator is highly competitive and difficult. To apply for membership on the AAA National Roster of Arbitrators, 10 years of experience in alternative dispute resolution–related activities is required, as well as direct training or experience in arbitration. Most people start out with a law degree and years of experience in a law firm that practices labor law.

Teaching part time and serving on local and state panels is a good way to gain experience. Many communities have dispute resolution centers that need neutrals to help resolve disputes. Although these may be volunteer positions, they are a great way to gain experience. In addition to experience, most arbitrator paths will require a graduate degree such as a law or labor relations degree.

The American Arbitration Association serves as one of the premier organizations. The best place to investigate a future as a labor arbitrator is at the American Arbitration Association website.

Labor Organizer

The description labor organizer can refer to many types of people and many types of jobs. Probably the best place to start, if one is interested in representing a union, is as a union member. There are numerous volunteer positions that union members can undertake and, in so doing, learn about their organization and its needs. Unions are constantly striving for new members and are always in need of people who can assist with increasing their numbers at the local level.

People who excel at recruiting and organizing often move up to the national level, where they assist with elections at businesses undergoing a union campaign. A cursory view of labor’s top leadership indicates that they all started with local unions and moved up the ranks from local to national offices. To understand how to become an organizer, visit the American Federation of State, County, and Municipal Employees (AFSCME) website, available at http://www .afscme.org/organize .

Prior to this course, you may have had a vague idea about what it means to be a negotiator, arbitrator, or mediator. After concluding this chapter, however, you should be able to differentiate between what each of these jobs entails and where it fits into the world of labor relations. As long as there are people, there will be disputes; as a result, there is much demand for people who have the skills to help resolve the myriad differences that inevitably arise in the world of business.