labor relations class exam via blackboard
ebrown2430
ch._10.pptxAdministrative issues
Seniority
Discharge & Discipline
Health & Safety
Production Standards/Staffing
Administrative issues are the noneconomic parts of the contract, although they definitely affect the bottom line.
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seniority
Provides rewards/preferences
Objective
Defensible
Helps retention
Limiting for management
Greater length of service gives greater rewards, or preferences in various areas such as promotion, job security, overtime, vacation, work conditions, layoffs, recall, shift preference.
Seniority is objective so easier to administer than merit or performance.
Seniority is easy to defend – to defend merit you must have a good system of performance evaluation and trained, capable managers to administer. Merit is easy for the union to challenge, seniority is not.
Benefits associated with seniority can act as a retention tool. Pension, vacation, sick leave, severance pay, etc. can keep employees.
Seniority can limit managements ability to promote the best worker.
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Seniority
Employer wide v. Departmental
Bumping
Super Seniority
“Special Employees”
Temporary Layoffs
Employer-wide seniority – counts total service with company.
Departmental seniority – discourages transfers between departments, discourages cross-training. What happens if a department is eliminated?
Bumping – an employee scheduled for layoff can “bump” a less senior employee from his/her job. This often causes a chain reaction that can disrupt several departments. Usually there is a limit to the number of subsequent “bumps”.
Super seniority – union officers that are required to administer the grievance process (usually President, VP and Stewards) are the last to be laid off regardless of seniority. They lose this status when they leave office.
Special Employees – some contracts allow for designation of employees that are indispensable because they are exceptional or have special skills. They can be passed over for layoffs regardless of seniority.
A “temporary” layoff (amount of time that differentiates “temp” from “permanent” will be specified in the contract. Usually this only affects one department – often when no work or shortage of materials in part of a plant. In a temp layoff it is not required to use seniority.
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Legislation
Seniority v. Affirmative Action
Reverse Discrimination Issues
The Supreme Court has consistently rules that under Title VII of the CRA is it ok to use “bona fide” seniority systems for layoffs, even if this causes those in protected classes to lose their jobs disproportionately.
Employers often try to “protect” certain individuals to compensate for past discrimination.
This often brings about charges of reverse discrimination. The Court has generally ruled that it is ok to give preference to minorities in hiring and promoting for “traditionally segregated” job categories - even if employer had not previously discriminated. Prior to this it was only ok if employer had history of discrimination.
Weber – white employee turned down for company training program designed to increase the number of blacks in skilled craft jobs even though he had seniority. Court confirmed this is ok.
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legislation
Firefighters v. Stotts
Wygant v. Jackson BOE
Johnson v. TA
Lorance v. AT&T
Firefighters v. Stotts – Affirmative Action programs cannot be used to lay off senior white employees and retain junior black workers.
-Supreme Court ruled this violated Title VII by preferential treatment to black employees.
-Court held that the seniority system was bona fide and not meant to discriminate.
Wygant v. Jackson Board of Education – labor agreement said in layoffs that junior black teachers would be retained and senior white teachers laid off to keep black teachers as role models.
-Court ruling allowed for the belief that if the employer had blatantly discriminated in the past then it might be able to discriminate in layoffs to make up for “the effects of past discrimination”.
-”Race conscious affirmative action as relief to dissipate the lingering effects of pervasive discrimination”.
Johnson Transportation Agency – Court allowed a woman with less seniority and lower test scores then a man to keep her job because there had been a “manifest imbalance” in the workforce – and she was qualified to do the job.
Lorance v. AT&T Technologies – began shifting of views
-Court restricted the time during which discriminatory practices involving seniority systems could be challenged.
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legislation
Wards Cove v. Atonio
Martin v. Wilks
U.S. Airways v. Barnett
Civil Rights Act of 1991
Wards Cove v. Atonio – plaintiffs (not employers) have the burden of proving whether a job requirement that screens out minorities or women is a business necessity.
Martin v. Wilks – Court approved affirmative action settlements could be reopened to let white male employees file reverse discrimination lawsuits.
U.S. Airways v. Barnett – ADA case – the Court ruled that seniority should outweigh a disability.
-An injured baggage handler was temporarily reassigned, but didn’t have the seniority to stay in that job long-term.
Civil Rights Act of 1991 countered this shift and the earlier court decisions.
Shifted the burden of proof from the plaintiff as required by Wards Cove back to the employer – made Martin null and void.
Allowed for punitive damages to victims of employment discrimination if plaintiff could prove that the employer acted “with malice or reckless indifference to the federally protected rights of an aggrieved individual”.
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Discharge and discipline
Just Cause
Appeals
Evidence/Proof
Communication
Mitigating Circumstances
Labor contract limits an employer’s ability to discipline to “only for just cause”.
-The definition of just cause is subjective. Usually defined through past practice and precedent, or through the grievance and arbitration procedures.
-Most contracts layout items that are “dischargeable”, i.e. incompetence, violation of work rules, slowdown or strike, excessive absenteeism or tardiness, fighting, drugs/alcohol, dishonesty, insubordination, sabotage, theft, vandalism.
-Contract also has procedures or “steps” for discipline, usually oral, written, suspension
-Employer must provide notice to employee and union prior to discharge – suspend employee, have a hearing then proceed with discharge.
-Discharge appeals through grievance process – usually discharge issues go right to 3rd step.
Evidence/Proof – similar to court, must prove facts and allegations – “innocent until proven guilty”.
-Circumstantial evidence can be considered just as in a courtroom.
-Use of “convincing proof” standard (as defined by the arbitrator”, rather than “beyond a reasonable doubt” or “beyond the shadow of a doubt”.
Communication – rules must be clear and specifically communicated. “I didn’t know” is hard to defend if can’t prove it was communicated. Use of handbook, bulletin board, emails, memos or the contract are standard.
Mitigating circumstances – prior clean work record, medication, personal issues, previous instigation, length of service.
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Safety and Health
Required Subject
of Bargaining
OSHA
Safety and Health is an area in which employers are required to bargain. The obligation to provide a safe work environment is not only for employers, but also for unions and employees.
OSHA was established in 1970. OSHA inspectors are granted the authority too inspect workplaces for safety violations.
Although there are not enough inspectors and onsite visits are rare, the legislation is effective because of the agency’s presence and because of the education it provides and requires employers and unions to provide to employees.
Most companies have joint Safety and Health committees.
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Production standards
Staffing/Efficiency
Conflicting Goals
Technological Change
Effects
Responses/Resolutions
Production Standards are the most controversial part of labor relations.
-Union and management are on different sides of the issue, have conflicting goals – if production per worker increases the need for employees decreases resulting in less union members. Pushing too hard and/or making employees work too quickly can be unsafe. Unions want to review the production standards that employers use.
Technological Change – Automation – Industrial “Robots” – cause job obsolescence, even the threat of displacement can cause morale issues.
Positives
Increased efficiency and profits, higher wages and higher standards of living
Safer work place
Improved product quality
Union efforts to deal with technological change:
Advance notice of layoffs or shutdowns (WARN Act)
Adoption of “Attrition Principle” – agreement to reduce jobs solely by attrition.
Retraining – do workers want this?
Restrictions on subcontracting – bone of contention for unions! Employer usually wins at arbitration if a) subcontracting is triggered by compelling economic reasons b) done in good faith c) employer has used subs in past without union objection d) work performed by subs not work usually performed by union members e) current employees can’t do the work (not enough or don’t have the expertise)
Other Measures – shorter workweeks, limiting OT, higher wages for more responsibility, require management to consult with union before implementing technological change, special wage provisions for downgraded employees.
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Production standards
Plant Closings
WARN Act
Notice Requirements
Penalties
Exemptions
WARN Act passed in 1988, covers employers with 100 FTE’s or FTE equivalents.
Requires 60 days notice of shutdown or mass layoff if:
50 or more employees at a single site would lose their jobs
Layoff is planned for 6 months or longer that affects 50 employees and equals at least 1/3 of the workforce
Layoff is planned for 500 or more employees.
Penalties are stiff – include pay and benefits to the employees for every day that notice is not given.
-Employer must also pay $500 per day notice is not given to the community.
Exemptions include actions that cannot be “reasonably foreseen”.
1. Unforeseeable business circumstances, i.e. Loss of major customer
2. Natural disasters.
3. Faltering company - a company has sought new capital or business to stay open and where giving notice would ruin the opportunity to get the new capital or business, and applies only to plant closings.
Natural disaster - flood, earthquake, drought or storm.
When the notices are given under these exceptions, they must include a brief statement of the reason for reducing the notice period in addition to the items required in notices.
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