HRMN 408 Week 8: Considerations for HR Professionals

Unions and Labor Relations

• NLRA Coverage

• Concerted Activities

• Representation Elections and Card Check

• Duty to Bargain

• Other Unfair Labor Practices

• Union Security and the Right to Work

• Strikes and Lockouts

CHAPTER 24

C o p y r i g h t 2 0 1 7 . S o c i e t y F o r H u m a n R e s o u r c e M a n a g e m e n t .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

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Book: The SHRM Essential Guide to Employment Law : A Handbook for HR Professionals, Managers, Businesses, and Organizations Author: Charles Fleischer Date: 2017

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An in-depth exposition on labor relations law would go well beyond the scope of this book. Employers need experienced labor law counsel when faced with union organizing activity, when engaged in collective bargaining, or when responding to a strike threat. What follows is a discussion of the basic principles arising under the National Labor Relations Act (NLRA).

According to the NLRA, inequality of bargaining power between employees and employers prevents the stabilization of competitive wage rates and working conditions. To remedy this inequality, the NLRA does the following:

• protects concerted activities by employees • provides a mechanism for union representation elections • promotes collective bargaining between employers and unions • prohibits unfair labor practices by employers and unions

The principal enforcer of the NLRA is the National Labor Rela- tions Board (NLRB). The board has primary jurisdiction over labor disputes and union elections. And when it is not clear whether an activity is governed by the NLRA, the board itself—not state or fed- eral courts—gets to decide in the first instance whether the NLRA applies.

Despite having primary jurisdiction, however, the board often defers to arbitration procedures in a collective bargaining agreement (CBA) for resolving grievances, even when the grievance involves an unfair labor practice.

NLRA COVERAGE The NLRA, and hence the NLRB’s enforcement power, extends to any employer whose activities affect interstate commerce—virtually any employer. However, the board has chosen not to exercise its jurisdiction over employers in a variety of industries that fall below specified revenue levels.

In general, the NLRB does not exercise jurisdiction over nonretail establishments whose gross cash flow across state lines is less than

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$50,000. As to retail establishments, at least $500,000 in revenue is required for the board to exercise its jurisdiction. Separate revenue tests also apply to office buildings, hotels and motels, private col- leges and universities, symphony orchestras, and certain health care institutions, among others.

The NLRB does not have jurisdiction over federal, state, and local governments; wholly-owned government corporations; employers that employ agricultural laborers or that are engaged in farming operations; and employers subject to the federal Railway Labor Act, such as interstate railroads and airlines.

The NLRA protects employee rights. But typical of federal labor laws, the term employee is defined in an unhelpful, circular way. (See Chapter 14, discussing the term for federal nondiscrimination law purposes.) The NLRA does, however, exclude from the definition various specific groups, including independent contractors and supervisors.

Independent Contractors Historically, the NLRB drew the employee/independent contractor distinction based on whether the employer exercised, or had the right to exercise, control over the means and manner by which the worker did his or her job—the common-law test. More recently, the board adopted a new test for independent contractors, which the D.C. Circuit Court of Appeals has approved.

The case involved Corporate Express Delivery Systems of Okla- homa City. Corporate Express engaged two types of drivers to deliver its packages—those who drove company vehicles and those who operated their own vehicles. The employer considered the first type as employees, but it treated owner-operators as independent contractors. When several of the owner-operators began holding meetings to discuss forming a union, the company spied on them, threatened to close its Oklahoma City branch, and fired three of the union organizers. The company’s actions would clearly be illegal under federal labor law if the owner-operators were employees for

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labor law purposes, but if they were only independent contractors, there would be no violation.

In concluding that the owner-operators should be classified as employees, the NLRB and the Court of Appeals considered wheth- er the workers had a significant entrepreneurial opportunity for gain or loss. Stated another way: who takes the economic risk con- nected with the worker’s job—the company or the worker? If the risk is with the company, then the worker should be classified as an employee, but if the worker bears the risk, then he or she is an inde- pendent contractor. Applying this new test to Corporate Express’s owner-operators, the court observed that the company prohibited them from employing others to do the company’s work and that it also prohibited them from using their vehicles to deliver packages for other companies. This, said the court, made them employees, not entrepreneurs.

Supervisors The NLRA defines supervisor generally “as any individual having authority ... to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recom- mend such action.” By statute, supervisors have no right to organize or to require employers to bargain with them, although employers may, if they wish, agree to treat supervisors as employees for bar- gaining purposes. Absent employer consent, however, the inclusion of supervisors in a bargaining unit is not permitted, and employers cannot be forced to bargain with such a unit.

Professionals In contrast to the exclusion of supervisors from NLRA protection, professional employees are entitled to unionize. However, profes- sionals cannot be forced into a bargaining unit with nonprofession- als unless a majority of the professionals approve the arrangement. While professionals necessarily exercise independent judgment in

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the course of supervising others, they still do not qualify as supervi- sors if their supervisory duties are merely routine or clerical and not independent.

Employees of Religious Institutions Teachers, including lay teachers, at religious institutions are exempt from the NLRB’s jurisdiction, according to the 1979 Supreme Court case NLRB v. Catholic Bishop of Chicago. In an April 2017 decision, however, the board gave a narrow reading to Catholic Bishop, holding that nonteaching employees at religious institutions are subject to the board’s jurisdiction “unless their actual duties and responsibilities require them to perform a specific role in fulfill- ing the religious mission of the institution.” The board’s decision involved housekeepers who worked for Xavier University, a private Catholic university in Illinois.

CONCERTED ACTIVITIES Employers are prohibited from interfering with employees’ concert- ed activities—efforts to better wages, hours, and working condi- tions. This includes, among other things, the employees’ right to self-organize by forming or joining a union.

Soliciting Union organizing efforts have engendered bitter disputes and a multitude of reported cases. One recurring issue is the extent to which employees and outside organizers may solicit at the work- place and may distribute pro-union literature. As the Supreme Court has said, the right to unionize necessarily encompasses the right to communicate effectively with one another regarding self-organization at the jobsite. Employee rights at the jobsite are not unlimited, however, since those rights can conflict with the employer’s own property rights and managerial interests. In short, some balance must be struck between the competing interests of employers and employees.

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In general, an employer may ban solicitation by employees of other employees during working time, and it may ban distribution by employees during working hours and in working areas. Con- versely, an employer generally may not restrict employee solicitation during nonworking time, and it may not ban employee distribution during nonworking time and in nonworking areas, such as employ- ee lounges and parking lots. The only exception is if the employer can show special circumstances that would make a ban necessary to maintain production or discipline.

Outside Organizers When it comes to outside organizers, the employer has greater rights. So long as the employer acts in a nondiscriminatory fashion, it may impose a blanket ban on solicitation and distribution by non- employees on employer property, unless the union can demonstrate that employees are not otherwise accessible to union organizers.

QUICK TIP Restrictions on soliciting and distribution—even those that are consistent with the rules

stated here—should have a reasonable business justification other than anti-union

animus. Employers that base restrictions on safety concerns can usually expect to have

them upheld.

Selective (discriminatory) enforcement of nonsolicitation and nondistribution rules can be an unfair labor practice. By way of example, a company completely bans employee use of the company’s bulletin board—a lawful rule under the NLRA if the employer is not unionized or if the rule is the result of good-faith bargaining. But then the company allows employees to post personal notices, such as items for sale, church raffle notices, and cartoons. Under these cir- cumstances, the company’s attempt to enforce its ban against pro- union material will amount to an unfair labor practice.

In another example, a nurse at a Florida hospital programmed her computer to display a screen saver saying, “Look for the U,” mean-

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ing “Look for the Union.” When she was disciplined for doing so, she filed an unfair labor practice charge. Finding that a wide variety of other personal screen saver messages were allowed, such as “Go Buccaneers” and “Have a nice day,” the NLRB upheld the nurse’s charge.

As a final example, the NLRB ruled in December 2014 that if a company grants its employees access to the company’s email system, it generally must allow them to use the system for union organiz- ing purposes during nonworking hours. The case, Purple Commu- nications, Inc., overruled an earlier board decision on the subject of email access.

Nonunion Shops Although the right to engage in concerted activities covers self-or- ganization, it also protects employees who are not unionized, and it protects activities that have little to do with the formation of a union. Examples of protected concerted activity, whether in a union or nonunion context, include the following:

• Discussing wages and working conditions. Since the right of employ- ees to self-organize and bargain collectively necessarily encom- passes the right to communicate with one another, an employer cannot adopt a rule prohibiting employees from discussing wages or other working conditions among themselves.

• Discussing employee sexual harassment complaints. The NLRB has ruled that a blanket company confidentiality requirement prohib- iting discussion of a pending sexual harassment investigation is an unfair labor practice.

• Inquiring about benefits. Employees can be persistent in pursuing benefits claims as long as their conduct is not so flagrant or egre- gious as to interfere with company business practices.

• Complaining about working conditions. An employee cannot be disciplined for complaining to management about matters of common concern to all employees. Although the employee may initially be acting alone, his or her actions will be consid-

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ered concerted so long as they are intended to initiate or induce group action. The intent to initiate or induce group action will be assumed if, for example, the complaint is voiced at a group meeting called to discuss working conditions.

• Wearing pro-union buttons and insignia. Wearing buttons and insignia is protected activity unless there are special considerations relating to employee efficiency and plant discipline.

ALERT! In addition to NLRA protections, state law may also bar certain work rules, such as a

prohibition on employees discussing their wages with each other.

Handbook Provisions Certain employee handbook rules, though seemingly lawful and reasonable on their face, have been attacked by the NLRB as tend- ing to inhibit employees from engaging in protected activity. Rules that the NLRB finds overly broad, in nonunion as well as union shops, include the following:

• at-will employment provisions that state the at-will relationship cannot be changed

• confidentiality rules that prohibit employees from discussing company and employment matters outside the workplace or dis- cussing internal company investigations

• conduct rules that require employees to act respectfully toward the company, its management, and fellow employees and avoid insulting or abusive comments

• rules prohibiting media contact • rules against any use of company logos, copyrights, or trademarks • rules against taking photographs or making videos or recordings on company property

• rules against walking off the job • a rule against disclosure of employee handbooks to third parties • conflict-of-interest provisions, such as “employees may not engage in any action that is not in the company’s best interest”

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According to the NLRB, employees would reasonably construe these rules as prohibiting concerted activity, which is protected by the NLRA. How the board will fare in attempting to enforce its views in court remains to be seen. In any event, employers might find it helpful to include a disclaimer in their handbooks like that in Figure 24.1. (See also the disclaimer in Figure 19.2.)

FIGURE 24.1: DISCLAIMER

Nothing in this handbook is intended to interfere with or restrain any employee’s rights under the federal labor laws, including the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection and the right to discuss with others the terms and conditions of employment.

QUICK TIP Concerted activity by union members or groups of employees to better wages and work-

ing conditions is exempt from anti-trust laws, even though the activity may amount to a

restraint of trade.

REPRESENTATION ELECTIONS AND CARD CHECK The NLRB has adopted detailed rules for initiating and conduct- ing representation elections. The process usually starts with a union organizer obtaining signatures on union cards authorizing a par- ticular labor organization to represent the employees. When a sub- stantial number of employees (at least 30 percent) have signed such cards, the labor organization then files a petition with the board requesting recognition as the exclusive bargaining representative. The cards themselves also get filed with the board to demonstrate that there is in fact substantial union support. The board, through one of its field offices, then conducts an investigation to determine the following:

• whether the employer’s operations affect commerce within the meaning of the NLRA

• the appropriateness of the bargaining unit

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• whether the election would further the policies of the NLRA and reflect the free choice of employees in the bargaining unit

• whether there is a sufficient probability, based on the evidence of representation, that the employees have selected the union to represent them

If the NLRB is satisfied on these points, it orders a representa- tion election to take place by secret ballot and supervises the actual conduct of the election. If a majority of employees in the bargaining unit vote in favor of the union, the union is then certified as the bargaining representative of all employees in the unit.

Ordinarily, the NLRB uses a simple formula to determine who is eligible to vote in a representation election: workers are eligible if they are employed on the date of the election itself and if they also were employed during the payroll period preceding the board’s order that the election take place. However, in determining who has sufficient continuity and regularity of employment to be included in the bargaining unit, the NLRB sometimes has to tailor its usual formula to fit varying employment situations.

The NLRB also determines the appropriateness of the bargaining unit. As an example, the board has included temporary employees along with the employer’s permanent employees in a unit for bar- gaining purposes. There are limits, however, on how far the board can go. As noted above, supervisors cannot be included without the employer’s consent. Nor can the board fashion a multiemployer unit without the consent of the affected employers. The board is also prohibited from designating a unit that includes both professionals and nonprofessionals unless a majority of the professionals vote for inclusion.

QUICK TIP A rule adopted by the NLRB in late 2014, dubbed the quickie election rule, expedites the

representation election process and, according to some, makes it difficult for manage-

ment to mount an opposition to an organizing campaign.

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An employer is free, if it wishes, to recognize the union without an election if more than 50 percent of the employees in the bargain- ing unit have signed cards indicating they want to be represented by the union. Alternatively, the employer can insist on an NLRB-su- pervised election. An employer is prohibited by law from recogniz- ing a union without an election when fewer than 50 percent of the employees have signed authorization cards.

Laboratory Conditions The elections themselves must be conducted in laboratory condi- tions, free from threats, coercion, promises, or other misconduct that might reasonably tend to interfere with the voters’ free choice. An election can be set aside even if the misconduct does not arise to the level of an unfair labor practice.

Management need not, of course, muzzle itself during an orga- nizing campaign. Management is free, for example, to express the company’s views, arguments, and opinions about unionization. But management cannot threaten employees with retaliation for voting pro-union, make promises conditioned on rejection of the union, interrogate employees about their organizing activity, or conduct surveillance to determine who is supporting the union.

Union conduct, too, can destroy laboratory conditions and war- rant setting aside an election. When union organizers at a clay mine in North Carolina made threats that employees could be “squeezed out of” their jobs if they did not support the union and told anti- union employees, “You won’t be able to work here when the union comes in,” the 4th Circuit Court of Appeals ruled that the resultant pro-union vote was invalid.

CASE STUDIES: ABUSIVE LANGUAGE A company that refurbishes rail cars for the Bay Area Rapid Transit System in California had an employee handbook rule that classified use of abusive or threatening language on company premises as serious

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misconduct warranting suspension for a first offense and possible termination for subsequent offenses. Since the company was not unionized, the International Association of Machinists and Aerospace Workers (part of the AFL-CIO) began organizing efforts in 1998. In December of that year an election was held, which the union lost. The union then filed unfair labor practice charges citing, among other things, the company’s abusive and threatening language rule. The union argued that vulgar expletives and racial epithets are part and parcel of a vigorous exchange that often accompanies labor relations. The NLRB agreed and voided the election.

The D.C. Circuit Court of Appeals reversed, strongly criticizing the NLRB in the process. The court ruled that unions were perfectly capable of acting civilly while conducting organizing campaigns. The court also pointed out that an employer may be exposed to claims if it fails to maintain a minimal level of civility in the workplace and allows racial, gender, or similar forms of harassment.

More recently, however, the U.S. Court of Appeals for the 2nd Circuit (headquartered in New York City) ruled that the employer, a catering service known as Pier Sixty, committed an unfair labor practice by discharging an employee for a vulgar Facebook post. The post, directed at the employee’s supervisor, said, “Bob is such a NASTY M***** F***** don’t know how to talk to people! ! ! ! ! ! F*** his mother and his entire f***ing family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !”

Card Check Representation Legislation generally known as the Employee Free Choice Act (EFCA) is introduced from time to time in Congress to allow card check representation, skipping the election process entirely and requiring a union to be recognized based just on cards signed by more than 50 percent of employees. Proponents of such legislation claim it would reduce an employer’s opportunity to mount drawn- out legal challenges or otherwise interfere in the organizing process. Opponents say it would eliminate the secret ballot aspect of union

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elections and allow organizers to coerce and intimidate employees into signing authorization cards.

The most recent legislation was H.R. 5000, introduced in April 2016. In September 2016 the bill was referred to the Subcommittee on Health, Employment, Labor, and Pensions of the House Com- mittee on Education and the Workforce. As of this writing, no fur- ther action has been take.

DUTY TO BARGAIN Federal labor law makes it an unfair labor practice for a unionized employer to refuse to bargain collectively with its unions. The term bargain collectively is defined by the NLRA as “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.”

Closely connected with an employer’s duty to bargain is its duty to provide the union with all requested information relevant to the union’s duties as representative of union members. The courts apply a broad definition of relevant in this context, so that there need only be a probability that the information will be useful to the union.

Normally, an employer’s duty to bargain with a union does not arise until after the NLRB has conducted a union representation election, the union has been successful, and the board has certified the election results. This has been called the preferred and most sat- isfactory method for a union to obtain representative status. But the duty to bargain can apply to a union that has lost a representation election. Suppose an employer, motivated by anti-union animus, so poisons the atmosphere with unfair labor practices that a would-be union loses the election. Traditionally, the board orders a new elec- tion. But if the employer’s actions make it impossible to conduct a fair and reliable new election, the board may simply treat the union as the employees’ legitimate representative.

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Project Labor Agreements Special provisions of the NLRA apply to employers in the building and construction industry. An employer in that industry is allowed to enter into a project labor agreement (PLA) with a union, even though the union has not yet been established as the representative of a majority of the employees to be covered by the PLA. Typically, a PLA requires all contractors and subcontractors who will work on a project to agree in advance to a master CBA under which wages, hours, and other conditions of employment are standardized for all employees at the project. The PLA requirement is incorporated into bid specifications, so any company that is awarded a contract is bound to join in the PLA.

Mandatory vs. Permissive Bargaining Bargaining over some subjects is mandatory, because those subjects involve wages, hours, and other terms and conditions of employment. Other subjects are permissive, in that employers and unions are free to bargain over them if they wish, but neither side can insist, to the point of impasse, on inclusion of a mere permissive subject in a CBA.

What are the mandatory subjects over which employers must bargain if requested to do so by their unions? According to the Supreme Court, they are subjects that are directly germane to the working environment. However, a company has a right to run its business without interference. So a company need not bargain over managerial decisions that lie at the core of entrepreneurial control, such as decisions concerning the commitment of investment capital and the basic scope and direction of the enterprise.

In addition to wages, hours, and benefits, examples of mandatory bargaining subjects include the following:

• company decisions that directly affect job security, such as a deci- sion to contract out work previously done by union employees (but decisions that only indirectly affect job security, such as a decision to discontinue a particular product line, are not subject to mandatory bargaining)

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• changes in working conditions • union security clauses, when such clauses are not forbidden under state right-to-work laws (discussed later in this chapter)

• seniority rights • management rights clauses reserving, for example, the company’s right to sell its business free of liabilities under the CBA, to dis- continue operations, to determine the number of hours per day and per week that operations should be carried on, and to sus- pend, discharge, or otherwise discipline employees

• prices and availability of services at in-plant cafeterias and vending machines

• hiring practices • tardiness policies • use of a company bulletin board • drug and alcohol testing • installation of security cameras to deter employee theft

This last item is drawn from a case before the D.C. Circuit Court of Appeals affirming a decision by the NLRB. The case involved a company’s practice over many years of installing hidden surveil- lance cameras to investigate specific cases of employee theft or other wrongdoing. Faced with unauthorized use of a manager’s telephone for long-distance calls, the company placed a camera in the manag- er’s file cabinet. The camera caught an employee (who happened to be a union member) using the phone, and the company promptly fired him.

The union filed a grievance over the firing and, at a subsequent hearing, discovered for the first time the company’s practice of using hidden surveillance cameras. The union then asked the company for detailed information about the cameras, indicating that it wanted to bargain with the company over the practice. The company refused to provide the information, and it refused to bargain.

The board ruled that the company was wrong on both counts. It said use of surveillance cameras is a subject of mandatory bargain-

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ing, just like physical examinations, drug and alcohol testing, and other investigatory tools and methods used by employers to dis- cover employee misconduct. Further, the company was required to provide pertinent information to the union—or at least bargain over what information would be provided. While the company may have a legitimate concern over keeping confidential such information as the location of the cameras, the company still had a duty to seek an accommodation that would meet the needs of both the union and the company.

Conflicts with Other Laws Sometimes an employer’s duty to bargain conflicts with, or appears to conflict with, other legal duties imposed on the employer. Take, for example, an employee with a disability who requests reassignment to a vacant position as an accommodation for his or her disability. (The duty of reasonable accommodation under the Americans with Disabilities Act, or ADA, is discussed in Chapter 17.) While ADA principles might well require the reassignment, doing so may at the same time violate established seniority practices. In that circum- stance, the Supreme Court has ruled that in the run of cases senior- ity trumps ADA requirements. Of course, if the employer’s seniority practice is one in name only, then the employer will have a difficult time defending its refusal to accommodate based on seniority.

In another Supreme Court case, a truck driver for a mining com- pany twice tested positive for marijuana. The mining company attempted to terminate the employee, but the union filed a griev- ance and insisted on arbitration. The arbitrator ruled that, in light of certain mitigating circumstances, there was no just cause for ter- mination (just cause being the standard prescribed by the CBA) and ordered the employee reinstated. The mining company then went to court, arguing that, notwithstanding its CBA and the arbitrator’s order, public policy justified refusal to reinstate the employee. This was especially so, said the mining company, because the employee was engaged in safety-sensitive tasks requiring random drug test-

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ing under U.S. Department of Transportation regulations. The Supreme Court rejected the company’s argument and upheld the reinstatement order, finding no overriding public policy that would justify refusal to comply with the order.

Or take the case of a union employee who was accused of sexual harassment. The employee in the case had a long history of offen- sive, sexually charged conduct directed at female co-workers. Finally, the employer’s equal employment opportunity officer recommend- ed that the employee be fired, but that recommendation had to be approved by the employer’s labor relations manager, who was on vacation. By the time the labor relations manager returned, more than 30 days had expired. Since the employer’s CBA required that discipline be imposed within 30 days of the misconduct, no fur- ther action was then taken. Eventually, after additional incidents, the employee was fired. In the meantime, however, the victims of his conduct filed sex discrimination charges.

The employer defended against the discrimination charges by claiming that under its CBA it could not fire the employee without following the procedures specified in the agreement. The 7th Cir- cuit Court of Appeals ruled, however, that a collective bargaining agreement is not imposed on an employer. Rather, it is an agreement every provision of which has been consented to by the employer. In this case, for example, the employer could have negotiated for spe- cial rules applicable to harassment, but it did not. Since the employer cannot by agreement limit its obligations under federal nondiscrim- ination laws, the employer alone must bear the consequences of its labor-relations decisions.

This decision illustrates an important point. Just because a subject of negotiation falls in the mandatory category, employers should still remember that their only duty is to bargain on the subject in good faith. The duty to bargain does not mean that the employer is obli- gated to agree with the union’s position.

The employer’s duty to bargain ends if a majority of employees in the bargaining unit no longer support the union. For the first

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three years while a CBA is in place, a conclusive presumption exists that the union enjoys majority support. However, after three years or when a CBA expires, the presumption of majority support is no longer conclusive. The employer may then attempt to rebut the pre- sumption by showing that, in fact, the union no longer represents a majority of workers.

OTHER UNFAIR LABOR PRACTICES Unfair labor practices come in many varieties. A number of them have been discussed above, such as refusal to bargain, selective enforcement of nonsolicitation rules, and adoption of workplace policies that interfere with concerted activities. The NLRA itself lists the following as employer unfair labor practices:

• interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by the NLRA

• dominating or interfering with the formation or administra- tion of a labor organization or contributing financial or other support to it

• discriminating in regard to hiring or tenure of employment or any term or condition of employment to encourage or discour- age membership in any labor organization

• discharging or otherwise discriminating against an employee because he or she has filed charges or given testimony under the NLRA

• refusing to bargain collectively with the employees’ representative

A few of these ULPs merit further discussion. Company-dominated employee committee. Historically, a favorite

way for employers to keep out, or at least keep control of, unions was to form an organization for its employees that appeared to, but in reality did not, give employees a voice in their conditions of employment. By making it illegal for an employer to dominate or interfere with a labor organization (defined as any organiza- tion of employees that exists to deal with the employer concern-

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ing grievances, wages, hours, or working conditions), the law effectively stops this practice.

Not all employee committees are illegal, however, as an NLRB decision shows. A nonunion manufacturer in Texas uses a management system under which it delegates substantial oper- ational authority to its employees. It accomplishes this through numerous committees in which employees and management participate. These committees make decisions by consensus on a wide variety of workplace issues such as production, quality, training, attendance, safety, maintenance, and even discipline short of suspension or discharge. Although senior management retains ultimate authority, it routinely approves all committee recommendations.

The board ruled that these committees are not labor orga- nizations because they do not exist to deal with management. Instead, the committees themselves perform management func- tions, exercising authority that, in the traditional plant setting, would be considered supervisory. So when a committee inter- acts with company officials, the interaction is really between two management bodies. In effect, these committees do not deal with management—they are management.

Discrimination against salts. In an attempt to unionize a non- union shop, a union may salt the shop by sending union orga- nizers as applicants for job openings. When an employer refuses to hire, or even consider, such applicants and the employer is motivated, at least in part, by anti-union animus, the employer commits an unfair labor practice. (Some say that the purpose of salting is not in fact to organize a union but to precipitate an unfair labor practice.) The 7th Circuit Court of Appeals has even held that a salt can lie on his or her job application, so long as the lie concerns his or her status as a salt and not his or her qualifi- cations for the job. In the 7th Circuit case, for example, the salt said he was “laid off” from his previous job, at $11 an hour, when applying for an $8.50 an hour job. Had he told the truth—that

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The SHRM Essential Guide to Employment Law438

he in fact took a voluntary leave of absence—the new employer might well have guessed his status as a salt.

Collusion with union. In a case before the 4th Circuit Court of Appeals, an employee of a Rochester, N.Y., freight company ran for union office against an incumbent Teamsters official. Despite a hard-fought campaign, the employee failed to defeat the incum- bent. During later renegotiations of the labor contract between the Teamsters and the freight company, the union offered to concede on a point important to the company if the company would fire the employee. The company eventually did so. The court ordered reinstatement, saying that the NLRA prohibits the discharge of an employee for engaging in protected activity such as running for a union election. The court went on to say that unions themselves cannot cause an employee to be fired for engaging in protected activity, nor can unions act in a manner contrary to the interests of their members, as the Teamsters did here by putting the personal gain of incumbent union officers ahead of the interests of union members.

UNION SECURITY AND THE RIGHT TO WORK Union security clauses are designed to protect union membership, or at least union revenue. A union security clause in a collective bargaining agreement might require that the employer be a closed shop—one in which the employer must hire only current union members, typically from a union hiring hall. Under a union shop arrangement, all eligible employees must join the union on being hired and must maintain membership as a condition of continued employment. And in an agency shop, employees do not need to be union members, but they must pay the same union dues that members pay.

Federal labor law permits union security clauses in collective bargaining agreements. However, since 1947 when the NLRA was amended by the Taft-Hartley Act, federal labor law has also permitted individual states to enact right-to-work laws making

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union security clauses illegal in those states. At this writing, 28 states have done exactly that:

• Alabama • Arizona • Arkansas • Florida • Georgia • Idaho • Indiana • Iowa • Kansas • Kentucky

• Louisiana • Michigan • Mississippi • Missouri • Nebraska • Nevada • North Carolina • North Dakota • Oklahoma • South Carolina

• South Dakota • Tennessee • Texas • Utah • Virginia • West Virginia • Wisconsin • Wyoming

Suppose an employee in a union or agency shop holds religious or moral convictions against union participation. Federal law pro- vides a limited escape clause. It says that any employee who is a member of a bona fide religion that has historically held conscien- tious objections to joining or financially supporting labor organi- zations may, instead of paying union dues, pay an equal amount to a designated charity.

STRIKES AND LOCKOUTS The NLRA says that except as otherwise expressly stated in the act, nothing in the act may be construed so as either to interfere with or impede or diminish in any way the right to strike. The courts have characterized the right to strike as a legitimate economic tool that implements and supports the principles of the collective bargaining system and that labor unions may use as they see fit.

The right to strike includes the right to picket. In general, pick- eting must relate to a primary dispute (a labor dispute between the picketing workers and the employer being picketed). Secondary pickets, like secondary strikes, are not protected by the NLRA. The right to strike also includes the right to refuse to cross a picket line in connection with a primary dispute. The right to strike does not

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The SHRM Essential Guide to Employment Law440

include slowdowns, unannounced walkouts, sit-down strikes, vio- lence or threats of violence, or defamation of the employer’s goods.

While the NLRA preserves the right to strike, it does not guaranty unions the right to choose the timing of a strike. Once the employ- er has exhausted its duty to bargain in good faith and reached an impasse, it is free to use the economic weapons at its disposal, just as the workers are free to strike. As the Supreme Court said in 1965, an employer’s use of a lockout in support of a legitimate bargaining position is not in any way inconsistent with the right to bargain col- lectively or with the right to strike.

When workers are out on strike, they remain employees, since the NLRA’s definition of employee includes “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employ- ment.” This means that an employer cannot retaliate against strikers for their union activity.

An employer’s right to hire permanent replacements for striking workers depends on the nature of the strike. If the strike is eco- nomically motivated (to improve wages, hours, or other terms and conditions of employment), the employer may hire permanent replacements. However, if the strike is to protest an unfair labor practice, the strikers are entitled to reinstatement with back pay upon making an unconditional offer to return to work.

ALERT! An employer cannot hire foreign workers on H-1B visas as replacements for economic

strikers, since the employer must certify in its H-1B application that there is no strike in

progress involving the job to be filled. Similarly, a TN visa may be denied if the secretary

of labor certifies that issuance of the visa may adversely affect settlement of a labor dis-

pute. (See Chapter 21 for more on work-related visas.)

Even for economic strikes, the employer faces certain limitations. For example, it cannot pick and choose who will be replaced based

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on the extent of involvement in union activities. The employer also cannot offer super seniority to replacements. In one case the employ- er did just that, arguing that it needed to offer super seniority as an inducement to the replacement workers. The Supreme Court held that doing so was an unfair labor practice because it discriminated between strikers and nonstrikers.

QUICK TIP A worker who is out on strike is generally ineligible for unemployment insurance bene-

fits. However, a nonstriking, unemployed worker will not become ineligible for benefits

by turning down a job offer that would involve replacing a striking worker.

An employee’s good-faith refusal to work under abnormally dan- gerous conditions is not a strike under the NLRA. So unlike workers who are on strike for economic reasons, employees who are absent for safety reasons cannot be permanently replaced.

Limitations on the Right to Strike Although the NLRA preserves workers’ right to strike, the right is subject to a number of limitations, discussed below.

Duty to bargain. Perhaps the most import exception to the right to strike arises from the union’s duty to bargain in good faith over mandatory subjects of bargaining. Until the employer and the union have bargained to impasse, the union may not strike, and the employer may not lock out.

No-strike clause. Employees can bargain away their right to strike by agreeing to a no-strike clause in their collective bargaining agreement.

Secondary strikes. The NLRA expressly prohibits labor unions from engaging in strikes or boycotts for the purpose of forcing a different employer to recognize or bargain with a labor union.

Taft-Hartley injunctions. When a strike or lockout affects an entire industry (or a substantial part of an entire industry) and, if permitted to occur or continue, would imperil the national health

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or safety, the president of the United States may appoint a board of inquiry to investigate the issues in dispute and make a report to the president. With the board of inquiry’s report in hand, the president may direct the attorney general to go to court and request an 80-day injunction against the strike or lockout.

Health care institutions. The NLRA requires labor organizations whose employees work at health care institutions to give at least 10 days’ previous notice, both to the institution itself and to the Federal Mediation and Conciliation Service, of its intent to strike, picket, or engage in some other concerted refusal to work. If the service believes a strike would substantially interrupt the delivery of health care in the locality concerned, the service may appoint a board of inquiry. Pending the board’s report and for 15 days thereafter, the pre-impasse status quo must be maintained.

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