Labor relations and collective bargaining case study

Labor Relations and Collective Bargaining

PRIVATE AND PUBLIC SECTORS

Tenth Edition

Michael R. Carrell

Founding Director Alternative Dispute Resolution Center

Northern Kentucky University

Christina Heavrin, J.D

Former Labor Negotiator and Special Counsel to the Mayor Louisville/Jefferson County Metro Government

Louisville, Kentucky

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Library of Congress Cataloging-in-Publication Data Carrell, Michael R.

Labor relations and collective bargaining : private and public sectors / Michael R. Carrell, Christina Heavrin. — 10th ed. p. cm.

9th ed. has subtitle: Cases, practice, and law. Includes bibliographical references and index. ISBN-13: 978-0-13-273001-3 (alk. paper) ISBN-10: 0-13-273001-4 (alk. paper)

1. Collective labor agreements—United States. 2. Collective bargaining—Law and legislation—United States. 3. Industrial relations—United States. I. Heavrin, Christina. II. Title. KF3408.C37 2013 344.7301'89—dc23

2011033786

ISBN 10: 0-13-273001-4 ISBN 13: 978-0-13-273001-3

10 9 8 7 6 5 4 3 2 1

DEDICATION

We dedicate this work to the thousands of former students who inspired us to write yet another edition of this book!

In addition, we dedicate it to our colleagues on both sides of the negotiation table, from whom we have learned through practice much of the material presented in this book.

Finally, we dedicate it to our families, who have given us time on weekends, holidays, and evenings to write books:

Colleen Sue, my wife, loving mother of our girls, and 2011 “Employee of the Year” Shari Diane, my firstborn and a model parent and homeowner Amber Maureen, my Hanover College graduate and Oregon graduate student Lexi Savannah, my NKU Accounting and Spanish major, and her new husband Sean Toon Annabelle Michael, my Dixie Heights High School 2011 Valedictorian Autumn Rain, Boompa’s dance partner and first grader

Michael R. Carrell

As always, this is dedicated to my husband, Mike Ward, my son and his wife, Jasper and Amanda, Jax, my grandson, and my son, Kevin.

Christina Heavrin

Reviewers:

We also dedicate this tenth edition to the following reviewers who provided insightful suggestions:

Tenth edition reviewers: Jerry Carbo, Shippensburg University

Diane Galbraith, Slippery Rock University

Bob Hoell, Georgia Southern University

David Jacobs, Morgan State University

Gundars Kaupins, Boise State University

Louis J. Manchise, Northern Kentucky University

Sophie Romack, John Carroll University

Josh Schwarz, Miami University David Strecker, Oklahoma State University

Reviewers of prior editions:

Robert Hatfield, Western Kentucky University; Anthony Chelte, Western New England College; Dawn Addy, Florida International University; James Browne, Colorado State University–Pueblo; Ross Prizzia, University of Hawaii West; Jim Hall, Santa Clara University; Jack Dustman, Northern Arizona University; Douglas McCabe, Georgetown University; Mel Schnake, Valdosta State University; James Kyle, Indiana State University; James Castagnera, Rider University; Joe Benson, New Mexico State University; Ronald Atkins, Salve Regina University; Katie Laskowitz, Purdue University; Jeffrey Bailey, University of Idaho; Kenneth Kovach, George Mason University; Richard Posthuma, University of Texas–El Paso; James Wanek, Boise State University; Steve Briggs, DePaul University; Thomas Lloyd, Westmoreland

iii

County Community College; J. Dane Partridge, Virginia Polytechnic Institute; Virginia C. Rogers, University of South Dakota; Ronney Vandeveer, Purdue University; Lane Tracey, Ohio University; Deborah Kottel, University of Great Falls; Debra J. Cohen, George Mason University; R. Richard Sabo, California State Polytechnic University; Robert A. Figler, University of Akron; Deb Buerkley, Southwest State University; William Sharbrough, The Citadel; David R. Bloodsworth, University of Massachusetts; Larry Donnelly, Xavier University; Roger Wolters, Auburn University; Louis White, University of Houston at Clear Lake; Steven Willborn, University of Nebraska at Lincoln; John Vahaly, University of Louisville; and Robert C. Miljus.

iv

BRIEF CONTENTS

PART I Labor Relations Overview 1

Chapter 1 Introduction to Labor Relations 1 Chapter 2 Private Sector Labor Relations: History and Law 39 Chapter 3 Public Sector Labor Relations: History and Law 79

PART II The Collective Bargaining Process 117

Chapter 4 Establishing a Bargaining Unit and the Organizing Campaign 117 Chapter 5 Negotiation Models, Strategies, and Tactics 160 Chapter 6 Negotiating a Collective Bargaining Agreement 205

PART III Cost of Labor Contracts 245

Chapter 7 Wage and Salary Issues 245 Chapter 8 Employee Benefits 285 Chapter 9 Job Security and Seniority 322

PART IV The Labor Relations Process in Action 359

Chapter 10 Unfair Labor Practices and Contract Enforcement 359 Chapter 11 Grievance and Disciplinary Procedures 406 Chapter 12 The Arbitration Process 430 Chapter 13 Comparative Global Industrial Relations 465

Appendix A Texts of Statutes 503

Appendix B Collective Bargaining Simulation 532

Appendix C Labor Media Guide 535

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CONTENTS

Preface xxi

Acknowledgments xxv

PART I Labor Relations Overview 1

Chapter 1 Introduction to Labor Relations 1 SHRM CERTIFICATION 3

Welcome! 3

What is Labor Relations and Why Study it? 3 KNOW YOUR RIGHTS! 6

Labor Unions Today: Pros and Cons 7

Why Join a Union? 10 HARD AND SOFT ISSUES 10 CAPITALISM AND COLLECTIVE BARGAINING 12

Union Membership 13 UNION LEADERS 14 WORKPLACE CHANGES 16

Employee Free Choice Act 18

Opportunities for Growth 18 STRATEGIC INDUSTRY FOCUS 18

Hospitality Industry 19

Health Care Industry 19

Airline Industry 20

Casino Industry 21

Shipping Industry 22

Professional Workers 22

Immigrant Workers 22

Foreign-Owned U.S. Auto Plants 23

Labor–Management Cooperation 23

GM/NUMMI 24

Types of Unions 25

Unions in Professional Sports 29 BASEBALL 30

National Labor Relations Board (NLRB) 31

Jurisdiction of the NLRB 32 PERSONS 32 LABOR DISPUTE 32 AFFECTING COMMERCE 32 EMPLOYEES 33 EMPLOYERS 33 LABOR ORGANIZATIONS 33

Preemption 33 Summary 34

vii

� CASE STUDY 1-1: Job Performance 34 � CASE STUDY 1-2: Grooming Standards at Southwest Airlines 35

You Be the Arbitrator: Should an Employee’s File Be Expunged? 36

Chapter 2 Private Sector Labor Relations: History and Law 39 The Roots of the American Labor Movement 41

Growth of National Unions 42

Unions, People, Incidents 42

Molly Maguires 43

Railway Strike of 1877 43

The Haymarket Square Riot 45

Knights of Labor 46

Homestead, Pennsylvania, 1892 46

Pullman Strike, 1894 46

Eugene Debs 48

American Federation of Labor 49

Samuel Gompers 50

Bunker Hill & Sullivan Mining Incident, Coeur d’Alene, Idaho 50

Industrial Workers of the World 51

Women’s Trade Union League 52

Ludlow, Colorado, Massacre, 1914 52

John L. Lewis 53

Congress of Industrial Organizations 54

Early Judicial Regulation 55

The Cordwainers Conspiracy Cases 55

Use of Labor Injunctions 56

The Erdman Act 57

Unions Gain a Foothold 58

Pro-Labor Legislation 60

The Clayton Act 60

The National War Labor Board 60

The Railway Labor Act 61

The Creation of a National Labor Policy 62

The Norris-La Guardia Act 62

The National Labor Relations Act (The Wagner Act) 62

The Fair Labor Standards Act 63

The Labor-Management Relations Act (Taft-Hartley Amendments) 65

The Labor-Management Reporting and Disclosure Act of 1959 67

The Employee Free Choice Act 68

Workforce Diversity 69

African Americans and Unions 70

Women and Unions 71

viii Contents

Immigrants and Unions 72 Summary 73

� CASE STUDY 2-1: Interfering with the Employee’s Right to Unionize 73 � CASE STUDY 2-2: Discriminating Against Union Members 74

You Be the Arbitrator: Management Rights 76

Chapter 3 Public Sector Labor Relations: History and Law 79 Defining the Public Sector 82

THE FEDERAL GOVERNMENT 83 STATE GOVERNMENT 84 LOCAL GOVERNMENT 85

History of Public Sector Labor Relations 86 PENDLETON ACT 86 EARLY PUBLIC SECTOR UNIONS 86

The Push for Public Sector Collective Bargaining 87

Public Sector Labor Laws 89

The Sovereignty Doctrine 89

Federal Employees 89 EXECUTIVE ORDERS 89 POSTAL REORGANIZATION ACT OF 1970 91 THE CIVIL SERVICE REFORM ACT OF 1978, TITLE VII 91 NATIONAL SECURITY PERSONNEL SYSTEM 91

State and Local Government Employees 93

Public Sector Unions 94

Contrasting Public and Private Sector Labor Relations 96

Collective Bargaining’s Impact on Governmental Budgeting 97 PATTERN BARGAINING 98 INABILITY TO PAY 98

Bargaining Differences in the Public Sector 99 MULTILATERAL BARGAINING 99 OPEN NEGOTIATIONS 99

Lack of “Union Security” in the Public Sector 101

Supervisors in Bargaining Units 101

Size of Public Sector Bargaining Units 102

The Right to Strike 102 THE PROFESSIONAL AIR TRAFFIC CONTROLLERS’ (PATCO) STRIKE 102

Resolving Impasse in the Public Sector 104

Alternative Dispute Resolution Procedures 106

Enforcement of Collective Bargaining Rights 107

Current Public Sector Challenges 107

Privatization 107

School Vouchers 109

Taxpayer Revolt 111 Summary 113

� CASE STUDY 3-1: Collecting Union PAC Money 113 � CASE STUDY 3-2: Resolving Impasse by Binding Arbitration 114

You Be the Arbitrator: Bereavement Leave 116

Contents ix

PART II The Collective Bargaining Process 117

Chapter 4 Establishing a Bargaining Unit and the Organizing Campaign 117 Bargaining Unit Determination 118

Bargaining Unit 120

Appropriate Unit 120 COMMUNITY OF INTEREST 121 HISTORY OF BARGAINING 121 EMPLOYEE WISHES 121 EMPLOYEE UNIONIZATION 122 THE UNIT AND EMPLOYER ORGANIZATIONAL STRUCTURE 122 PUBLIC INTEREST 122 ACCRETION 122 STIPULATED UNITS 122 SUPERVISORS 122

Types of Units 124 CRAFT UNITS 124 DEPARTMENTAL UNITS 125 ONE EMPLOYER, MULTIPLE LOCATIONS 125 MULTIEMPLOYER UNITS 125 RESIDUAL UNITS 125 REMAINING UNITS 125 CONSTRUCTION INDUSTRY UNITS 126 HEALTH CARE INSTITUTION UNITS 126

Union Structure 127

Types of Unions 127 CRAFT UNIONS 127 INDUSTRIAL UNIONS 128

Levels of Unions 128 LOCAL UNIONS 128 LOCAL OFFICERS 129 NATIONAL (OR INTERNATIONAL) UNIONS 131 INTERMEDIATE ORGANIZATIONAL UNIONS 131 FEDERATION OF UNIONS 131

Change to Win 132 INDEPENDENT UNIONS 132

Bargaining Unit Determination in the Public Sector 134

Public Sector Unions 134

The Organizing Drive 134

Union Organizing Strategies 136

Salting 137

Union Avoidance Strategies by Management 137

Management “TIPS” and “FORE” in Campaigns 138

Countersalting Steps 141 ORGANIZING AT THE WORKPLACE 141 SOLICITING UNION SUPPORT 141 PICKETING DURING AN ORGANIZATIONAL CAMPAIGN 142

x Contents

Representation Election Procedures 143

Prohibited Conduct During an Election 146

Voluntary Recognition 148

NLRB Directive 150 FIRST CONTRACT BARGAINING 150

Decertification Elections 152

Representation Elections in the Public Sector 154

Exclusive Representation 154 Summary 155

� CASE STUDY 4-1: Salting 155 � CASE STUDY 4-2: Exclusive Representation 157

You Be the Arbitrator: “Just Cause” for Termination 158

Chapter 5 Negotiation Models, Strategies, and Tactics 160 Negotiating Sessions: “At the Table” 162

Opening Session 162 GROUND RULES 164

Recognizing Common Bargaining Tactics 165 CONFLICT 165 CONCEALMENT 165 PACKAGING 165 THROWAWAY ITEMS 166 CAUCUSING 166 FLEXIBILITY 166 COMPROMISE 167 SAVING FACE 167

Critical Elements in a Negotiation: Information, Time, Power 168

Information 168 BATNA 168 RELATIVE BATNA 168

Time 168

Power 169

Ethics in Negotiations 170

Bargaining Strategies 172

Distributive Bargaining 173 THREE KEY STARTING VALUES 174

Opening Offers: Anchors 176 DESIRED OUTCOME STRATEGY 177 NORMS 179 RELATIONAL NORM 180 FAIRNESS NORM 181 RECIPROCITY NORM 182 GOOD-FAITH BARGAINING NORM 182 FRAMING POSITIONS 183 REFRAME OFFERS 183

Use of Framing Questions 184

Applying Norms and Frames 185

Contents xi

Integrative Bargaining 186

Integrative versus Distributive Bargaining 187 THE INTEGRATIVE NEGOTIATION PROCESS 188

Principled Negotiations 188 KEY #1: POSITIONS VERSUS INTERESTS 188 KEY # 2: SEPARATE PEOPLE FROM ISSUES 189 KEY # 3: FOCUS ON OBJECTIVE CRITERIA 189 KEY # 4: DEVELOP MUTUAL GAINS OPTIONS 190 THE CATEGORIZATION METHOD 191

Interest-Based Bargaining 194 IBB STEPS 194

Reaching Agreement 196

Point of Crisis 196

The Closing Stage 196

Tentative Agreement 197 Summary 198

� CASE STUDY 5-1: Good-Faith Negotiations 199 � CASE STUDY 5-2: Selection of Bargaining Team Members 201

You Be the Arbitrator: Negotiations 203

Chapter 6 Negotiating a Collective Bargaining Agreement 205 The Bargaining Process 206

The People Who Bargain 206 UNION REPRESENTATIVES 206 MANAGEMENT REPRESENTATIVES 207 NEGOTIATING SKILLS 207

Preparation Stage 208

Categories of Bargaining Subjects 208 WAGES 211 CONDITIONS OF EMPLOYMENT 212

Sources of Bargaining Issues 213

Bargaining Stage 214

Pressure Bargaining: Possible Strikes 215

Reaching Impasse 215 STRIKES 215 CALLING A STRIKE 215 MANAGEMENT RESPONSE 216 WHY STRIKES OCCUR 217 TYPES OF STRIKES 218

Permanent Striker Replacement 219 PICKETING 221 LOCKOUT 222 NO-STRIKE, NO-LOCKOUT PROVISIONS 222

Resolution Stage: Beyond Impasse 223 MEDIATION 223 INTEREST ARBITRATION 225 FACT-FINDING 225

xii Contents

FINAL-OFFER ARBITRATION 225 MEDIATION–ARBITRATION 226

Reducing an Agreement to Writing 226

Key Provisions of a CBA 227

Union Security 227 UNION SECURITY CLAUSE 228 FORMS OF UNION SECURITY 230

Right-to-Work Laws 231 RESEARCH ON RIGHT-TO-WORK 233 LENGTH OF THE COLLECTIVE BARGAINING AGREEMENT 234

Management Rights 234 RESERVED RIGHTS 235 RESTRICTED RIGHTS 235 GRIEVANCE AND ARBITRATION 236

Contract Bar 236

Bargaining in the Public Sector 237 MULTILATERAL BARGAINING 237 PRESS INTEREST 237 SUNSHINE LAWS 237 NO RIGHT TO STRIKE 238 RESOLVING AN IMPASSE 238 Summary 238

� CASE STUDY 6-1: Surface Bargaining 239 � CASE STUDY 6-2: Impasse in Negotiations 240

You Be the Arbitrator: School Bus Drivers 242

PART III Cost of Labor Contracts 245

Chapter 7 Wage and Salary Issues 245 Union Wage Concerns 248

Worker/CEO Pay Gap 250

Union Wage Objectives 250

Industrial Differentials 252

Management Wage Concerns 252

Wage Laws 253 MINIMUM WAGES 253 OVERTIME COMPENSATION 254 THE DAVIS-BACON ACT 255 WALSH-HEALEY ACT 256

Negotiated Wage Adjustments 256

Standard Rate, Pay Range Systems 256

Piece-Rate Systems 256

Deferred Wage Increases 257

Cost-of-Living Adjustments 258

Profit Sharing 260 VARIABLE WAGE FORMULA 261

Contents xiii

Scanlon Group Incentive Plans 261

Two-Tier Wage Systems 262

Lump-Sum Payments 263

Concession Bargaining 264 PUBLIC SECTOR CONCESSIONS 265

Executive Pay 268

Payback Agreements 268

Employer Concessions 268

Wage Negotiation Issues 269

Productivity Theory 269

Ability to Pay 270

Job Evaluation 271

Wage Surveys 273

Costing Wage Proposals 273

Base 275

Roll-Up 276

Total Negotiated Costs 277 Summary 278

� CASE STUDY 7-1: Premium Pay Rates 278 � CASE STUDY 7-2: Incentive Pay 280

You Be the Arbitrator: Scheduling Saturday as Part of the Workweek 282

Chapter 8 Employee Benefits 285 Required Benefits 287

Negotiated Benefits 288

Income Maintenance Plans 289

Pension Plans 289

Cost Containment 289

Public Sector Pensions 289

Traditional Pension Plans 290

ESOP: An Alternative Retirement Plan 292

Employee Retirement Income Security Act 292

Issues in Pension Negotiations 293 VESTING 293 QUALIFIED PLAN 293 CONTRIBUTORY PLANS 293 AGE OR SERVICE REQUIREMENT 294 DISQUALIFICATIONS 294 BUYOUT 294 BENEFIT FORMULA 294

Wage Employment Guarantees 295

Supplemental Unemployment Benefits 295

Severance Pay 296

Death and Disability Plans 297

xiv Contents

Health Care 299

Health Care Cost Containment 299

Behavior Modification Programs 300

Health Reimbursement Arrangements 301

Domestic Partners 301

Voluntary Employees Beneficiary Association 301

Wellness Programs 302

Employee Assistance Programs 303

The Consolidated Omnibus Budget Reconciliation Act 304

Pay for Time Not Worked 304

Paid Holidays 306

Paid Vacations 308

Sick Leave 311

Paid Leaves of Absence 311

Premium Pay 312

Bilingual Language Skills 313

Travel Pay 313

Employee Services 313

Flexible Benefit Plans 314 ADVANTAGES OF FLEXIBLE PLANS 315

Child Care 316 CHILD CARE CENTERS 316

Elder Care Programs 316

Credit Unions 317

Public Sector Benefits Issues 317 Summary 317

� CASE STUDY 8-1: Paid Leaves of Absence 318 � CASE STUDY 8-2: Employee Benefits 319

You Be the Arbitrator: Not Working a 40-Hour Week 321

Chapter 9 Job Security and Seniority 322 Job Security 323

Seniority 325

Calculation of Seniority 326

Seniority List 326

Seniority and the Americans with Disabilities Act 328

Superseniority 329

Promotions 329

Job Bidding 330

Layoff and Recall Rights 331

Layoffs and Affirmative Action Plans 334

Advanced Notice of Shutdown 334

Worker Adjustment and Retraining Notification Act 334

Contents xv

Determining Ability 335

Company Mergers 335

Subcontracting, Outsourcing, and Relocating 337

Employee Teams 340

Union Response to Employee Teams 341

Successorship 343

Successor Employer Rights 344 BANKRUPTCY 345

Employee Alcohol and Drug Testing 345

Employee Attitudes Toward Drug Testing 349

Social Media Usage 350

Public Sector Security Issues 351 Summary 351

� CASE STUDY 9-1: Relocating Work Without Bargaining 352 � CASE STUDY 9-2: Drug Testing 356

You Be the Arbitrator: Subcontracting Work or Union Busting? 357

PART IV The Labor Relations Process in Action 359

Chapter 10 Unfair Labor Practices and Contract Enforcement 359 Interference with Employees’ Right to Organize 361

Unfair Labor Practices That Interfere With Organizing a Bargaining Unit 362 TYPICAL UNFAIR LABOR PRACTICES IN AN ORGANIZING CAMPAIGN 364 UNION INTERFERENCE WITH AN ORGANIZING CAMPAIGN 367

Employer Domination and Interference 369

Employee Teams and the NLRA 369

Employer Support and Assistance 370

Discrimination Against Union Members 370

Protected Concerted Activities 372 STRIKES 374 ILLEGAL STRIKES 375

Prominent U.S. Strikes 376

Weingarten Rule 378

Union Restraint or Coercion of Employees 379

Duty to Bargain in Good Faith 381

Nature of the Duty 381

Totality of Conduct Doctrine 381

Surface Bargaining 382 DELAYING TACTICS 383 UNILATERAL CHANGES BY EMPLOYER 383 BYPASS THE UNION 384 AUTHORITY TO SETTLE 384 COMMITTING UNFAIR LABOR PRACTICE 384

Duty to Furnish Information 384

xvi Contents

Rights and Prohibited Conduct During the Term of a Contract 385

Duty to Bargain during the Contract Term 385

Union Demand to Negotiate During a CBA 386

Employer’s Unilateral Action During a Contract Term 387

Prohibited Economic Activity During a Contract Term 387 SECONDARY BOYCOTTS 388 SHOP-INS 389 HOT CARGO AGREEMENT 389 HOT CARGO AND SWEATSHOPS 390 FEATHERBEDDING 390

The Authority of the NLRB 391 UNFAIR LABOR PRACTICES 391

Section 10(J): Court Injunctions 394 CONTRACT ENFORCEMENT BY NLRB 396

Court and NLRB Deferral to Arbitration 396

Public Sector Unfair Labor Practices and Contract Enforcement 398

Federal Government 398

State and Local Governments 399

Individual Rights Within Unions 399

Duty of Fair Representation in Contract Negotiations 399 RIGHT TO REFRAIN FROM UNION ACTIVITIES 399 UNION SECURITY CLAUSES 399 FAIR REPRESENTATION IN CONTRACT ENFORCEMENT 400 Summary 401

� CASE STUDY 10-1: Unfair Labor Practice by an Employer 401

� CASE STUDY 10-2: Unfair Labor Practice by a Union 402 You Be the Arbitrator: Refusing to Arbitrate 404

Chapter 11 Grievance and Disciplinary Procedures 406 Steps in a Grievance Procedure 409

Step 1: Employee, Steward, Supervisor 410

Step 2: Written Grievance 410

Step 3: Shop Steward, Department Head 410

Step 4: Union Grievance Committee, Director of Personnel and Industrial Relations 411

Step 5: Arbitration 411

Functions of Grievance Procedures 413

Employee Misconduct 414

Minor Offenses 417

Serious Offenses 418

Last Chance Agreement 418

Disciplinary Procedures 419

Disciplinary Procedure 420

Grounds for Discharge 420

Contents xvii

Grievance Mediation 422

Public Sector Grievance Issues 424 Summary 425

� CASE STUDY 11-1: Insubordination of a Police Officer While in Pursuit of a Stolen Vehicle 425

� CASE STUDY 11-2: Sleeping on the Job 426 You Be the Arbitrator: Employee Writing Threats 428

Chapter 12 The Arbitration Process 430 Types of Arbitration 431

Demand for Rights Arbitration 434

History and Legal State of Arbitration 435

Arbitration of Statutory Rights in Union and Nonunion Cases 439

Title VII Cases 439

The Federal Arbitration Act and Individual Employment Agreements 440

Selecting the Arbitrator 443

Arbitration Services 444

Qualifications of Arbitrators 444

Tripartite Arbitration Board 446

Determining Arbitrability 447 DOUBLE JEOPARDY 448

Hearing Procedures 449

Opening Statement 449

Rules of Evidence 449

Assessing Credibility of Witnesses 449

Presenting Documents, Photographs, and Videos 450

Examination of Witnesses 450

Summation 450

Arbitrator’s Award and Opinion 450

Case Preparation 451

Decision Criteria 451

Just Cause 452

Seven Tests of Just Cause for Discipline 455

Arbitration Issues in the Public Sector 457

Interest Arbitration 457

Rights Arbitration 458 Summary 460

� CASE STUDY 12-1: Drug and Alcohol Testing 461 � CASE STUDY 12-2: Arbitrability 462

You Be the Arbitrator: Can a “Just Cause” Standard Be Satisfied Without Proving Fault? 463

xviii Contents

Chapter 13 Comparative Global Industrial Relations 465 Globalization 467

Foreign Direct Investment 467

Multinational Enterprises 467

Financial Markets 468

Deregulation and Liberalization 468

Trade Unions 469

Worldwide Labor Movement 469

Industrial Revolution 469

Democratic Revolution 470

Capitalist Revolution 470

Growth of Trade Unions 472

International Labour Organization 473

Anglophone Countries 475

Great Britain 475

Canada 478

Australia 479

European Union Nations 480

The European Union 480

Germany 484

France 485

Italy 488

Far East 491

Japan 491 THREE KEY PREMISES OF JAPANESE LABOR RELATIONS 491

China 493 Summary 496

� CASE STUDY 13-1: Freedom of Movement 497 � CASE STUDY 13-2: Discrimination Against Union Official 499

You Be the Arbitrator: Minimum Wage 501

Appendix A Texts of Statutes 503 National Labor Relations Act 503

Labor-Management Relations Act 520

Appendix B Collective Bargaining Simulation 532 Appendix C Labor Media Guide 535

Endnotes 538

Index 559

The glossary for this text can be found at http://www.prenhall.com/carrell.

Contents xix

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PREFACE

FOCUS OF THE BOOK

Welcome to the tenth edition of Labor Relations and Collective Bargaining, which over the past 30 years has become the standard for labor relations textbooks. The PHR and SPHR Certification Guide lists only one textbook for the employee and labor relations functional area for students preparing for the Society for Human Resource Management (SHRM) professional exams—this textbook! This new edition includes several significant changes from the ninth edition, including two entirely new chapters and a focus on labor relations in the public sector as well as private sector. We sincerely thank the reviewers of prior editions for suggesting many of the changes. The tenth edition contains over 100 updates derived from both court and NLRB decisions and recent labor events. At the same time, it maintains the hallmark features of past editions.

NEW TO THIS EDITION!

• Chapter 1 is a totally new introduction to the field of labor relations, which defines the field of labor relations and explains why all students will learn important organizational concepts that are relevant to many fields of interest. In addition the chapter discusses the pros and cons of labor unions, and why people join unions. Types of unions and labor–management cooperation are also covered.

• Chapter 3 is a totally new chapter that defines public sector labor relations (local, state, federal government) and provides its history. In addition, the chapter outlines important contrasts between private and public sector labor relations.

• Chapter 5 includes an explanation of the two primary methods of negotiation: distributive bargaining and integrative bargaining. Practical “real-life” examples of both methods are included in the chapter. These negotiation techniques can be utilized by students in a variety of personal and professional situations.

• Chapter 5 includes a discussion of ethics in negotiations. In collective bargaining, people are faced with difficult and unique ethical situations as they strive to conceal their “bottom-line” interests while building trust through open, honest negotiations.

• Chapter 6 includes a new section on conflict resolution techniques—mediation, arbitration, and fact-finding. As an alternative to an impasse, these techniques are explained and their advantages and disadvantages presented.

• Chapter 9 includes coverage of social media usage by employees, which has become a growing job security issue. Increasing use of Facebook, Twitter, You Tube, and so on has caused employers to develop and negotiate new policies to address productivity and legal concerns.

• New NLRB and Court Decisions. This edition includes over 100 changes from the prior edition that reflect new NLRB and court decisions as well as recent union and labor relations events.

• Appendix C is a Labor Media Guide which includes a brief summary of a mixture of award-winning documentaries, popular Hollywood first-run movies, and other unique media which focus on labor events and can “bring to life” the human element and circum- stances of American labor history. Each is available on DVD, and the Instructor’s Manual contains suggested scenes, labor issues presented, suggested relevant text chapters, and relevant discussion questions.

Labor Relations and Collective Bargaining: Private and Public Sectors, tenth edition, introduces students to collective bargaining and labor relations with an emphasis on application,

xxi

as well as a thorough coverage of labor history, laws, and practices. Drawing on over 60 years of experience in negotiating, labor law, and teaching, we have developed a text for readers who need a practical working knowledge of labor relations in the private and/or public sectors. The text focuses on collective bargaining and labor relations with an emphasis on the real-world situations one faces on the job, including a chapter on negotiating strategies and tactics that can be used in any professional or personal situation. Sections of actual labor agreements as well as ar- bitration cases and decisions of the National Labor Relations Board (NLRB) and the courts illustrate and emphasize contemporary issues of collective bargaining and labor relations. In addition, experts in the fields of labor law and arbitration have contributed tips on how the concepts learned can actually be applied.

The focus of the book is as follows:

a. Appropriate Courses. This text is designed for and has been adopted in both graduate and undergraduate courses in labor relations and collective bargaining in both public sector courses (political science, public administration, etc.) and private sector business management courses.

b. Text Focus. This text provides an applied approach while including thorough coverage of significant court and NLRB decisions as well as labor events.

c. Approach. This text provides an applied, practical approach to labor relations based on the authors’ 60-plus years of experience. The approach is illustrated by the many examples of provisions from current labor agreements and the inclusion of NLRB and court decisions within each chapter, as well as cases for students at the end of each chapter, “Tips from the Experts,” “You Be the Arbitrator” sections at the end of each chapter, and a thorough coverage of all issues contained in collective bargaining agreements.

d. Prerequisites. No specific courses need to be taken before a course that uses this text at the graduate or undergraduate level. Most students have little or no knowledge of the subject before taking such a course.

e. SHRM. This text provides coverage of the employee and labor relations functional areas of the SHRM certification exams.

f. AACSB. This text can be used in a course that is designed to provide coverage of manageri- al content.

PEDAGOGICAL FORMAT

A student-oriented chapter format was designed to integrate theory with the bread-and-butter issues at the core of most actual negotiations. This integration, which includes the following material, provides a sense of how issues in the real world are resolved:

• Labor News. These chapter-opening articles summarize current labor relations activities to help students relate current events to the day-to-day labor practices discussed in the chapter

• In-Chapter Marginal Definitions. Terms unique to labor relations and collective bargain- ing are defined in the margins of pages where the term first appears for the convenience of students. A complete glossary of all labor relations and collective bargaining terms and concepts appears online at www.prenhall.com/carrell.

• Chapter Cases. Several short cases, which include the decisions of the arbitrator or judge, illustrate those points discussed within each chapter while bridging the gap between theory and practice.

• Tips from the Experts. In several chapters labor relations professionals answer questions about the collective bargaining process and point out pitfalls for employers and employees involved in the labor relations field.

xxii Preface

• Labor Profiles. In many chapters, a number of profiles of labor leaders or of innovations in the labor relations process help the student understand the concepts in the chapter and the history of labor relations in the United States.

• Contract Provisions. Illustrating key provisions with numerous new examples from contracts, including Agreement between General Electric Aviation and Lodge No. 912, International Association of Machinists and Aerospace Workers, AFL-CIO, 2007–2011; Agreement between the Kroger Company and the United Food and Commercial Workers International Union AFL-CIO, 2007–2010; Agreement between Louisville/ Jefferson County Metro Government and Fraternal Order of Police Lodge # 614, 2008–2011; Agreement between Duke Energy Ohio, Inc. and local Union 1347 International Brotherhood of Electrical Workers, AFL-CIO, 2006–2009; and Agreement between C. Lee Cook Division, Dover Resources, Inc. and Lodge No. 681, International Association of Machinists and Aerospace Workers, AFL-CIO, 2007–2012.

Chapter-end and end-of-text materials include the following:

• “You Be the Arbitrator.” A real-world arbitration case at the end of each chapter allows students to assume the role of arbitrator who is presented with the facts, relevant provisions of a labor agreement, and the positions of the union and management. Students are asked to decide an award and opinion, cite the most relevant facts, and decide what actions might have taken to avoid the conflict.

• Case Studies. Case studies help students understand both sides of the issues. The case studies describe the facts and lawsuits, but actual decisions are not provided. These cases are taken from court and NLRB decisions and allow students to play the role of the arbitrator or judge in deciding cases.

• Key Terms and Concepts. A list of the important terms and concepts discussed in the chapter, including the vocabulary unique to labor relations, is provided. The student should be able to recognize, define, and discuss the terms after completing the chapter. Key terms appear in boldface and are defined in context.

• Review Questions. Straightforward questions focus on the major areas covered. If the review questions present any difficulty, the student should reread the appropriate material.

• Glossary. A glossary of all key terms that appear in bold print in the chapters can be found online at www.prenhall.com/carrell.

• Texts of Major Labor Legislation. The text of the National Labor Relations Act and the Labor Management Relations Act, as amended, is included at the end of this book to provide a ready reference to these important documents.

COMPREHENSIVE COVERAGE

This text comprehensively treats the environment of labor relations, the activity of collective bargaining, and the need for administrating an agreement after it has been signed. The text explores labor relations issues in both the private and public sectors, the impact of diversity in the workplace, and how global labor relations affect U.S. interests.

Part One traces the development of collective bargaining. Chapter 1 outlines exactly what is the field of labor relations and why students should study it. Also, the pros and cons of unions and why people join unions are discussed. Chapter 2 focuses on the roots of the American labor movement and discusses the laws that led to and finally established the collective bargaining process. Chapter 3 discusses the history of public sector labor relations (local, state, federal governments). In addition significant contrasts between the private sector (for-profit small to large businesses) and public sector are explained.

Preface xxiii

Part Two examines the collective bargaining process. Chapter 4 discusses how bargaining units are formed, the organizational campaigns by both unions and employers, and the represen- tation election process. The rights of unions to represent members as well as the obligations of unions to their members are also explored in this chapter. Chapter 5 outlines the bargaining process “at the table” including the two most common negotiating methods, distributive and integrative bargaining, as well as the critical elements of time, information, power, and BATNA. In addition the unique ethical challenges faced by negotiators are discussed. Chapter 6 provides a detailed discussion of the collective bargaining process, including preparation and bargaining subjects, strikes, and key contract provisions. Part Three covers the costs of collective bargaining agreements. Chapter 7 covers wage and salary issues including the different types of compensa- tion provisions that are negotiated in collective bargaining agreements. Chapter 8 looks at the benefits negotiated in most contracts, including forms of pay for time not worked, pensions, health care, premium payments, and employee services. Chapter 9 presents the critical issues of job security and employee seniority and alcohol and drug testing. In addition new important issues including employee social media usage and employee teams are presented.

Part Four presents the operational processes involved in enforcing collective bargaining agreements. Chapter 10 explores unfair labor practices, protected and prohibited employee activi- ties, duty to bargain in good faith, and the NLRB. Chapter 11 presents widely used grievance and disciplinary, types of employee misconduct, and procedures to resolve grievances between employers and employees. Chapter 12 describes the types of arbitration used in labor relations, the historical and legal state of arbitration, and the arbitration process Chapter 13 is a timely look at globalization and its impact on U.S. workers. The chapter contains a comparative review of the worldwide labor movement as well as the state of industrial relations in other countries, including Great Britain, Germany, Japan, and China.

INSTRUCTOR SUPPLEMENTS

The site http://www.pearsonhighered.com/educator is where instructors can access the resources available with this text in downloadable, digital format.

It gets better. Once you register, you will not have additional forms to fill out or multi- ple user names and passwords to remember to access new titles and/or editions. As a registered faculty member, you can log in directly to download resource files and receive immediate access and instructions for installing Course Management content to your campus server.

Need help? Our dedicated Technical Support team is ready to assist instructors with questions about the media supplements that accompany this text. Visit http://247pearsoned.custhelp.com/ for answers to frequently asked questions and toll-free user-support phone numbers. The following supplements are available to adopting instructors.

To access the supplements listed here, please visit the Instructor’s Resource Center (IRC) Online at www.pearsonhighered.com/carrell.

Power Points

Instructor’s Manual

Test Bank

Collective Bargaining Simulation Appendix B provides a collective bargaining simulation of an actual agreement negotiated by the authors. The instructor can access the following: the entire agreement, a list of the priorities of both the union and management that were involved in the negotiations, a summary of the changes agreed to in the actual negotiation, and the entire new agreement at www.pearsonhighered.com/carrell.

xxiv Preface

This bargaining exercise is based on a real-world negotiation involving the renegotiation of a contract between the Fraternal Order of Police union and management of the Louisville Metro Police Department. Students can negotiate an agreement in which several pay and benefits issues as well as noneconomic issues are addressed. The instructor may share with students the actual new agreement negotiated by the parties after their own negotiations have been completed.

Exercises Student exercises that appeared at the end of chapters in prior editions are now available to the instructor in the Instructor’s Manual.

STUDENT SUPPLEMENTS

The website www.pearsonhighered.com/carrell features an interactive and exciting online student study guide. Students can access multiple-choice, true/false, and Internet-based essay questions that accompany each chapter in the text. Objective questions are scored online, and incorrect answers are keyed to the text for student review.

CourseSmart eTextbooks Developed for students who want to save on required or recommended textbooks, CourseSmart eTextbooks online save students money off the suggested list prices of the print text. Students simply select their eText by title or author and purchase immediate access to the content for the duration of the course using any major credit card. With a CourseSmart eText, students can search for specific keywords or page numbers, make notes online, print out reading assignments that incorporate lecture notes, and bookmark important passages for later review. For more information or to purchase a CourseSmart eTextbook, visit www.coursesmart.com.

ACKNOWLEDGMENTS

We wish to thank the collective bargaining, labor law, and arbitration experts who so graciously agreed to contribute to the text. They are Kay Wolf and Thomas C. Garwood, Jr., formerly of Garwood, McKenna & McKenna, P.A., Orlando, Florida; Nancy E. Hoffman, general counsel, Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, New York; Phyllis Florman, arbitrator, arbitration office of Volz & Florman, Louisville, Kentucky; Scott D. Spiegel of Lynch, Cox, Gilman & Mahan, P.S.C., Louisville, Kentucky; Steve Barger, executive secretary-treasurer, Kentucky State District Council of Carpenters, AFL-CIO; Kenzie Baker, vice president, Local Union 1347 International Brotherhood of Electrical Workers, AFL-CIO; Richard A. Ille, vice president, General Electric Aviation, Evendale, Ohio; Mr. Lennie Wyatt, president, Local 1099, United Food and Commercial Workers Union, Monroe, Ohio; Kevin Garvey, director collective bargaining UCFW Union, Local No. 1099, Monroe, Ohio; Lisa Crain, director human resources, C. Lee Cook, Louisville, Kentucky; Frank E. Warnock, City Solicitor, City of Covington, and for his numerous and significant contributions, a special acknowledg- ment of Louis J. Manchise, vice-chair, Alternative Dispute Resolution Center, NKU, and former director, Federal Mediation Service, FMCS.

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ABOUT THE AUTHORS

Michael R. Carrell Dr. Carrell is the founding director of the Alternative Dispute Resolution Center at Northern Kentucky University, located in the greater Cincinnati area. In 2010 Dr. Carrell received the pres- tigious Lifetime Achievement Award at the Annual Labor–Management Conference for his career as a negotiator, author, and teacher in the field of human resource management and labor relations. From 1998 to 2007, he served as the dean of the NKU College of Business. Carrell received his doctorate from the University of Kentucky, and his MBA and BA in economics from the University of Louisville. In addition he received professional certification from the Harvard Law School Program on Negotiation. His professional career has included positions as a person- nel director, labor negotiator, and mediator. In addition, he was elected to the City of Louisville Board of Aldermen for five terms, and served as president of the board and mayor pro tem for three terms. His academic career spans four decades and includes positions at the University of Louisville, as well as serving as business dean at California State University, Bakersfield; University of Nebraska–Omaha; Morehead State University; and Northern Kentucky University.

Dr. Carrell has authored over 50 scholarly works in some of the leading management and human resource journals including The Academy of Management Journal, The Academy of Management Review, The Dispute Resolution Journal, Organizational Behavior and Human Performance, Personnel Journal, The Personnel Administrator, HR Magazine, Labor Law Journal, Business Forum, Personnel, The Journal of Accountancy, Training, and Public Personnel Management. Dr. Carrell has also published several books in the fields of negotiation, collective bargaining and labor relations, organizational behavior, and human resource manage- ment. During his academic career he has received awards for both outstanding research and teaching.

Christina Heavrin Ms. Heavrin has practiced law for 32 years primarily in the public sector as an attorney for local government in her hometown of Louisville, Kentucky. In addition to negotiating numerous litigation settlements and contracts, she has negotiated a number of major agreements, such as a multimillion-dollar property exchange that relocated major industries and railroads from the city’s downtown wharf, resulting in the development of both an award-winning public park and a successful industrial park in the city’s enterprise zone; an agreement between the state of Kentucky, Jefferson County, the City and a for-profit hospital for guaranteed indigent health care services for city residents; a tax-sharing agreement between the City of Louisville and Jefferson County that enabled the two governments to share revenue of over $200 million and to combine their economic development programs; and a multimillion-dollar expansion of Waterfront Park that included a major environmental cleanup and the construction of a minor-league baseball stadium in downtown Louisville. When voters approved the merger of the City of Louisville and Jefferson County Governments, Ms. Heavrin was appointed special counsel to the first mayor of the Metro Government. Her duties included negotiating over 40 collective bargaining agree- ments between Louisville Metro Government and unions that represent about 6,000 employees. Recently Ms. Heavrin was appointed General Counsel to the Kentucky Cabinet for Health and Family Services by Governor Steve Beshear.

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Workers have a right to organize into unions and to bargain collectively with their employers . . . and a strong free labor movement is an invigorating

and necessary part of our society

DWIGHT D. EISENHOWER (34TH U.S. PRESIDENT)

1CHAPTER

Chapter Outline 1.1 Welcome! 1.2 What Is Labor

Relations and Why Study It?

1.3 Labor Unions Today: Pros and Cons

1.4 Why Join a Union? 1.5 Union Membership 1.6 Opportunities for

Growth

1.7 Labor–Management Cooperation

1.8 GM/NUMMI 1.9 Types of Unions

1.10 Unions in Professional Sports

1.11 National Labor Relations Board (NLRB)

Introduction to Labor Relations

PART I Labor Relations Overview

The rights of public sector employees to form unions and collectively bargain came under attack in Wisconsin, Indiana, and Ohio as Republican governors sought large wage and benefit concessions to balance state budgets. Source: David Joles/The Star Tribune/AP Images.

1

2 Part I • Labor Relations Overview

LABOR NEWS

Collective Bargaining Rights and Public Unions in Historic Fight!!! In 2011 public sector unions’ very right to exist was challenged in a fashion unlike any other in modern times! Midwestern states including Indiana, Ohio, and Wisconsin—the state that gave birth to public sector unions in the 1950s—witnessed Republican governors and state houses not only demanding large cuts in wages and benefits to balance state budgets, but also go so far as to try and strip government employees of their right to form unions and bargain collectively. In Wisconsin, for example, union leaders agreed to accept the cuts needed to balance the state budget, but Governor Scott Walker still demanded that public employees’ right to bargain collectively be ended by state law. Many including Republican Pat Wellnitz asked why it is necessary to strip employees of their rights if they are willing to make the necessary conces- sions; “ending collective rights is pretty drastic, even for a staunch Republican,” said Wellnitz. Newly elected Republican Ohio governor John Kasich, citing budget problems, also supported a bill that would end the collective bargaining rights for 35,000 state workers and 20,000 university employees in his state. In addition, police and firefighters would lose the right to binding arbitra- tion required to end a negotiation impasse. However, Hamilton County commissioner Todd Portune testified before a legislative committee that in Cincinnati local unions had “pitched in” to make the cuts needed to balance the budget. These events in states generally believed to be pro-union made national news as pro- and antiunion forces around the country watched to see what the final outcome would be, which was possibly the start of a sea change in public sector collective bargaining.

Perhaps it is ironic that the events in Wisconsin, Indiana, and Ohio took place shortly after, for the first time in U.S. history, in 2009, more union members were government work- ers (7.9 million) than were private sector workers (7.4 million), according to the U.S. Bureau of Labor Statistics. The blue-collar worker is no longer the real stereotype. The steady rise in public sector union membership (today 37.4 percent of all government workers and 43.3 percent of local government workers) combined with a sharp decline in private sector union membership due to the “Great Recession” of 2008 caused the historical event years earlier than forecasted. Substantial losses in manufacturing and construction jobs accounted for a great percentage (2.2 million) of the private sector decline in recent years. Another trend in union membership is the rise in female union membership (7.7 million), which has made gains on male union membership (9.2 million); males suffered a much larger decline in over- all union membership, 11.4 percent in 2009, compared to females, only a 3.3 percent decline.

Union workers, however, continued to receive higher average weekly wages, $908, than their nonunion counterparts, who received $710 average weekly wages. Labor offi- cials and economists were uncertain if the rebound of the U.S. economy would enable pri- vate sector union membership to outnumber public sector membership, as it had every year in the past. Private sector unions had realized modest membership gains in the two years prior to 2009, after several years of decline, but could not sustain the gains in the wake of the slide in the economy.

Source: Adapted from S. Sulzberger and Monica Davey, “Union Bonds in Wisconsin Begin to Fray,” The New York Times (February 22, 2011), pp. A1, A17; Jon Craig, “Ohio Labor Unions Ramp Up Protests,” The Cincinnati Enquirer (February 23, 2011), p. B7; and Steve Greenhouse, “Most U.S. Union Members Are Working for the Government,” The New York Times (January 22, 2010), p. A1.

The purpose of this book is to introduce students to the field of labor relations and collective bargaining. This goal is achieved by providing a thorough coverage of important labor laws, labor history, and important cases. In order that the material is useful to all students regardless of their level of knowledge and experience in Human Resource Management (HRM) and labor relations, the book was written with an emphasis on application and real-world practical knowledge gained from the authors’ 60-plus years of professional experience, as well as many interviews and materials provided by other labor relations professionals. This focus is intended to enable students to apply concepts and knowledge gained from the book to their everyday professional and personal lives. For example, in the chapter on negotiating strategies, the

Chapter 1 • Introduction to Labor Relations 3

strategies and tactics presented have been utilized by former students in personal negotiation situations such as buying a house or an automobile, negotiating a new employment position, and even resolving disputes between friends and spouses.

SHRM CERTIFICATION Students interested in obtaining certification as a Professional in Human Resources (PHR) or a Senior Professional in Human Resources (SPHR) through the Human Resource Certification Institute (HRCI), the credentialing organization founded by the Society for Human Resource Management (SHRM), will find that this book contains all the required content in the employee and labor relations functional area. In fact, the HRCI’s PHR and SPHR Certification Guide by Raymond B. Weinberg (HRCI; Alexandria, VA, 2008) lists only one textbook for the employee and labor relations functional area (p. 25) for students preparing for the exams—this textbook! Both the HRCI guide and this textbook can be found online in the SHRM bookstore: www.shrm.org.

WELCOME!

As the authors of this book we welcome you to the field of labor relations and collective bargaining! We have drawn upon our “real-world” experience in negotiating labor contracts and other business and professional contracts, as well as our teaching courses in labor relations, negotiations, and human resource management. To help students relate the material to their own lives and interests we have included several unique features. For example, each chapter contains sections called “Tips from the Experts,” contributed by several professional management and labor negotiators. Summaries of the most significant labor laws, National Labor Relations Board decisions, and court cases are provided in easy-to-comprehend terms. Also provided are many examples of actual provisions from labor agreements so students can directly learn from these “real-world” examples which are discussed in the chapters.

The field of labor relations contains many terms that may be new to readers, and thus to help them identify and easily learn these critical terms, they have been located in the margins of the chapter pages. In addition, the power of media such as films, videos, and documentaries can be utilized with this text as well! Appendix C provides a list and summary of recommended media that will help students learn the sometimes tragic human stories and historical labor relations events, and provide insights into content of the chapters. One example is the film Norma Rae, with Sally Field in the Academy Award–winning title role. The film is based on the real-life events experienced by a union organizer in a J. P. Stevens & Co. textile mill in South Carolina—at that time the largest employer in the state. By viewing the hardships endured by Norma Rae, a strug- gling single mother of young children, students can better understand why she risks her job and much more to gain recognition from management. Also, the end of each chapter contains a section, “You Be the Arbitrator,” in which the facts of an actual labor relations grievance (complaint filed by either the union or management) and the positions of management and the union are presented. Students perform the role of arbitrator (similar to a judge) and decide the outcome of the case.

In addition, Appendix B includes a “real-world” collective bargaining simulation based on an actual contract negotiated by the authors themselves. The simulation is about the renegotiation of an existing labor agreement between a Fraternal Order of Police (FOP) local chapter and management representatives of a city government. Toward the end of this course students will have gained the skills, knowledge, and abilities necessary to successfully renegotiate the FOP/city contract, exactly as professional negotiators would in real life. Thousands of past students after using this text in a course have successfully negotiated a new collective bargaining agreement judged by professional labor negotiators to be almost equal in professional quality to the ones actually negotiated!

WHAT IS LABOR RELATIONS AND WHY STUDY IT?

Labor relations is the term which generally refers to the process between management and a representative of employees (a union) utilized to make decisions in the workplace. The decisions include issues such as wages, benefits, working conditions, hours of work, safety, job security,

LABOR RELATIONS

Any activity between management and unions or employees concerning the negotiation or imple- mentation of a collective bargaining agreement.

4 Part I • Labor Relations Overview

and grievance procedures, to name some of the most common provisions. When representatives from management and the employees sit down to formally negotiate these issues and put in writing their agreed provisions, the process is called collective bargaining—because the employee representatives represent the collective interests of the employees.

During negotiations the two sides may reach an agreement on individual issues—these are called “tentative agreements” because, once negotiations have successfully concluded, the members of the union must ratify (approve by vote) the proposal consisting of all the tentative agreements presented by the union negotiators. After ratification by the members, the union and management officials sign a written agreement (if requested by either party). This signed agreement is usually titled Collective Bargaining Agreement, often called CBA for short, or just Agreement, between the two parties. Figure 1-1 contains examples of two agreements and lists the major subjects contained in most CBAs. The written agreement is then a contract between the employer and the employees. In this textbook, as in life generally, we use all three terms—contract, collective bargaining agreement, and CBA— interchangeably to refer to the written and signed document negotiated under the provisions of the National Labor Relations Act (NLRA).

FIGURE 1-1 Collective Bargaining Agreement. Source: Michael Carrell.

Common subject areas contained in collective bargaining agreements: • Compensation: wages, benefits, paid time off • Job Security: seniority rights, promotion, layoff and recall, work rules, overtime • Discipline/Discharge: “just cause,” progressive discipline, union representation • Grievance Procedures: steps in grievance process, mediation, arbitration • Union Rights: recognition, union security, dues check off • Management Rights: operating decisions, hours, work standards, no strike clause

Examples of negotiated Agreements in the private sector (GE Aviation and UAW, Local 647) and the public sector (City of Louisville, KY and IBEW, Local No. 783)

COLLECTIVE BARGAINING AGREEMENT

A written and signed document between an employer entity and a labor organization specifying the terms and conditions of employment for a specified period of time.

Chapter 1 • Introduction to Labor Relations 5

LABOR ORGANIZATION

Defined in Sec. 2. [§ 152] of the NLRA and means any employee committee or other organization of any kind in which employees deal with employers concerning grievances, labor disputes, wages, hours, or working conditions.

Collective bargaining in the private sector is the process by which union leaders representing groups of employees negotiate specific terms of employment with designated representatives of management. The term collective bargaining originated in the British labor movement. But it was a labor union president in the 1800s, Samuel Gompers, who developed its common use in the United States. The following is a modern-day definition:

Collective bargaining is defined as the continuous relationship between an employer and a designated labor organization representing a specific unit of employees for the purpose of negotiating written terms of employment.1

According to the definition, collective bargaining must be recognized as a continuous process, beginning with the negotiation of a contract through the life of the contract with almost daily interpretation and administration of its provisions. In recent years the process has also come to include the handling of employee grievances in most labor agreements and, if necessary, arbitration of such grievances in a final and binding decision. The employer referred to in the definition may be one or more related employers joined together for purposes of collective bargaining and required by law under the NLRA to recognize employee representatives. The labor organization or union is selected by a group of employees to represent them at the bargaining table. The election process undertaken to select a union, the specific unit of employees, or the bargaining unit to which employees belong is also determined by the NLRA.

The terms of employment negotiated generally include the price of labor, for example, wages and benefits; work rules, including hours of work, job classifications, effort required, and work practices; individual job rights, such as seniority, discipline procedures, and promotion and layoff procedures; management and union rights; and the methods of enforcement and adminis- tration of the contract, including grievance resolution. Heated confrontations—the “screw the boss” and “keep the union in its place” syndromes—have sometimes characterized the American system of collective bargaining and labor relations.2 However, most union and management offi- cials today view collective bargaining as a rational, democratic, and peaceful way of resolving conflict between labor and management.

Why should I study labor relations if I don’t belong to a union or ever intend to join one— may be what you are thinking! You are correct that if you spend your entire career in the private sector (for-profit businesses), then the odds of your belonging to a union are small. However, all workers in the private sector have rights under federal and state laws whether they choose to form a union or not. All workers as well as members of management in private sector nonunion businesses need to know the rights enjoyed by their employees, as well as management’s rights, should employees attempt to unionize. Also, if you ever work in the public sector (local, state, federal government), then the odds of your becoming a union member are almost one in two! Thus students regardless of their chosen careers are highly likely to be directly affected by many of the issues explained and discussed in this book.

Even if you are not directly involved as a member of management or a union during your career, you are very likely to be indirectly affected by events in labor relations. For example, you may have been one of millions of Americans who were upset when their favorite television show Grey’s Anatomy, Desperate Housewives, or The Tonight Show with Jay Leno, to list a few, halted production of new episodes in 2008 due to the strike by the Writer’s Guild of America in Hollywood, California, or you might have been 1 of 7 million New Yorkers who was stranded when the subways and busses stopped running for three bitter cold days in December 2005 during the transit strike. Or you may have been one of the millions of grocery shoppers who found their favorite Albertsons, Vons, or Ralphs store closed when the Kroger’s west coast chains had to suspend operations in 860 stores during the United Food and Commercial Worker’s strike. In the future if the proposed new federal law The Employee Free Choice Act (EFCA) is enforced, you may be one of millions of nonunion workers directly affected by the act. Finally, the history

6 Part I • Labor Relations Overview

of the labor movement in the United States, discussed in the next two chapters, is one that any student of American history will find interesting and useful, and will help them better understand many facets of today’s workplaces and many aspects of our society.

KNOW YOUR RIGHTS! Another reason to study labor relations is to learn the employee labor rights which are provided to you under federal and states laws. Many laws that provide important individual rights, such as those provided by the Equal Pay Act, Civil Rights Act, Americans with Disabilities Act, Family and Medical Leave Act, and Age Discrimination in Employment Act, are discussed in detail in human resources management courses, and are summarized in Table 1-1. Additional important rights, however, such as those provided by the National Labor Relations Act, Taft-Hartley Act, Fair Labor Standards Act, Landrum-Griffin Act, as well as many others, are also important for you to know, and are discussed in detail in this book. In addition, landmark decisions by the National Labor Relations Board (NLRB) and landmark court decisions that affect your labor rights are also presented.

TABLE 1-1 Major U.S. Employee Rights Laws

Year Title Major Provisions Locate Online

1963 The Equal Pay Act

Requires “equal pay for equal work” in the same workplace, regardless of gender, and makes it unlawful to retaliate against a person who complained about pay discrimination, or participated in a lawsuit.

www.eeoc.gov

1964 The Civil Rights Act (Title VII)

Makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex, and it is illegal to retaliate against a person who complained about discrimination, or participated in a lawsuit. Also requires employers to reasonably accommodate sincerely held religious practices, except in cases of undue hardship.

www.eeoc.gov

1965 E.O. 11246 (Affirmative Action)

Federal contractors and subcontractors; affirmative action must be taken by covered employers to recruit and advance qualified minorities, women, persons with disabilities, and covered veterans.

www.dol.gov

1967 Age Discrimination in Employment Act (ADEA)

Protects people aged 40 and older from discrimination because of age, and makes it unlawful to retaliate against a person who complained about pay discrimination, or participated in a lawsuit.

www.eeoc.gov

1978 Pregnancy Discrimination Act

Makes it illegal to discriminate against a woman because of pregnancy, childbirth, or a related condition, and makes it unlawful to retaliate against a person who complained about pay discrimination, or participated in a lawsuit.

www.eeoc.gov

1988 Employee Polygraph Protection Act

Prevents employers from using lie detector tests, either for preemployment screening or during the course of employment, with certain exemptions. Also, employers may not discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test.

www.dol.gov

1990 Older Workers Benefit Protection Act

Prohibits employers from age discrimination in employee benefits. www.eeoc.gov

1990 Americans with Disabilities Act (ADA)

Makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments, and makes it illegal to retaliate against a person because the person complained about discrimination, or participated in a lawsuit. Also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability, unless doing so would impose an undue hardship.

www.disabilities.gov

Chapter 1 • Introduction to Labor Relations 7

LABOR UNIONS TODAY: PROS AND CONS

What exactly is a labor union? Are labor unions “good or bad”? What are the pros and cons of unions? These questions should be answered before we begin the thorough coverage of labor relations provided in this book. First, the term “labor union” or just “union” refers to a group of employees who join together to discuss and usually positively affect their employment relationship. Why? Often the initial meeting is due to a recent event in the workplace that has caused them alarm—the discipline of a coworker, a wage or benefit reduction, or concern over a perceived unsafe working condition. The employees feel that when they meet with management about the issue, they will benefit from “strength in numbers”—a core belief of why employees decide to work as a group rather than taking individual action. Many times in organizations across the United States every year a similar scenario occurs and the meeting between management and the employees resolves the issue, and the group does not meet together again, or very seldom.

However, in some cases the issue(s) is not resolved to the satisfaction of the employees, and at some point they seek another method of addressing the issue. Then, as it often happens, someone in the group contacts a formal labor union official and asks for assistance. In other cases a labor union official contacts the employees as part of a union organizing effort. Regardless of how the initial contact is made, in most cases the group is informed of their rights under federal and state laws. One very important right that is available to most private sector employees under the National Labor Relations Act (and available to many public sector employees under similar federal, state, and local laws) is the following:

Sec.7. Employees shall have the right to self-organize, to form, join, or assist labor organizations. To bargain collectively through representatives of their own choosing . . . ”3

Notice that the act does not say “labor union” or “union,” but instead refers to such as “labor organizations.” In fact the term “union” does not appear in the federal act. Labor organizations, as they are called in the act, are most often referred to as unions (e.g., The United Food and Commercial Workers Union), but also use other descriptors such as brotherhoods (The International Brotherhood of Teamsters), fraternal orders (The Fraternal Order of Police), guilds (The Writer’s Guild of America), associations (The National Association of Letter Carriers), federations (American Federation of Teachers), or some unique designation (United Auto Workers). All are labor organizations, and thus their members enjoy all of the rights provided by federal or state labor laws.

1993 Family and Medical Leave Act

Requires that all public agencies, all public and private elementary and secondary schools, and companies with 50 or more provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons: (1) for the birth and care of the newborn child of an employee; (2) for placement with the employee of a child for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition.

www.dol.gov

2008 Genetic Nondiscrimina- tion Act

Makes it illegal to discriminate against employees or applicants because of genetic information—including information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members. Also makes it illegal to retaliate against a person who complained about discrimination, or participated in a lawsuit.

www.eeoc.gov

8 Part I • Labor Relations Overview

The answer to the other question presented, what are the pros and cons of unions (thus are they good or bad)? depends on who you are; as the old saying goes—where you stand depends on where you sit! Thus we will answer the question from three different perspectives— union members, management/owners, and society as a whole. A summary of the major pros and cons from these three perspectives is presented in Table 1-2. First, from the members’ viewpoint, unions are good because through collective bargaining they have provided members higher wages and better benefits than their nonunion counterparts in other organiza- tions. This fact alone for many members is reason enough to view unions as good. Wages and benefits are sometimes called the “bread and butter issues” for unions—their core reason for existence. However, for many, many years members have also cited job security as just an important reason to view their union as good. They believe the knowledge and expertise their union representatives provide them in cases involving discipline, and sometimes discharge, and grievance handling are important to their job security, as are contract provisions that provide for seniority in cases of recall after layoff and in cases of promotions. Other benefits that might be cited by members include negotiated paid time off, health care, and pensions that are generally greater than those received by nonunion employees. Some of the “cons” members might cite include union dues that usually average about two hours’ pay per month. Some might point to the lack of individual organizational rewards based on their individual performance, because unions tend to negotiate rewards that are across-the-board or are based on seniority, not individual performance.

Management, of course, would have a different perspective in answering the question about the pros and cons of unions. The “cons” list would be longer—and would start with the flip side of members’ higher wages and benefits. These additional personnel costs cause a business to be less competitive than their nonunion competition and/or global competition. Management also would cite the cost of the time and effort required in dealing with unions, particularly in the discipline and grievance processes provided under most agreements. Work rule inflexibility due to provisions in agreements is another major “con” often cited by management. The inflexibility

TABLE 1-2 The General Pros and Cons of Union Membership

Perspective Pros Cons

Members * Higher wages * Union dues * Representation in

discipline/discharge cases * Fewer individual rewards

based on performance * Greater job security * Better health care, pension,

and paid time-off benefits

Management/owners * System for grievance handling * Higher personnel costs reduce competitive position

* Fewer individual requests/ complaints

* Less flexible work rules

* Standard rules reducing friction at the workplace

* Greater time spent on grievances

* Less competitive than nonunion

Society * Increased middle class * U.S. firms less competitive in global markets

* Leadership in passing major employment laws

* Image of union leaders

* Less relevant in today’s global marketplace

Chapter 1 • Introduction to Labor Relations 9

causes, according to management, wasted time and sometimes increased costs, and lower productivity. Management would cite few, if any, “pros.” If pressed, some managers would admit that having an effective system for handling employees’ grievances can make their jobs easier because they know exactly how to proceed when a grievance is presented. Additionally, many managers would point to the benefit of having standard work rules to manage their facility which the union has agreed to and employees must follow. Many nonunion employers, it might be noted, also have similar systems in place for handling employee grievances for exactly that reason. Managers who have worked in both union and nonunion environments might cite as another “pro” the fact that they receive fewer, if any, employee individual requests for pay increases, additional time off, or other favors because such issues are included in the contract and thus a manager has no authority to grant such requests.

Society as a whole has a unique perspective on the question about the pros and cons of unions. Some people would answer that unions in the past played a significant role in the creation of the American middle class—whose purchasing power is critical to the U.S. economy—a very important historical “pro.” Another historical “pro” would be the critical political efforts of unions to gain passage of the important federal legislation presented in Table 1-1, including the Fair Labor Standards Act that banned child labor, and set the standard 40-hour workweek and the national minimum wage; the Equal Pay Act that requires employers to provide “equal pay for equal work” regardless of gender; the Civil Rights Act which prohibits employers from discrimination based on color, race, gender, religion, or national origin; and the Age Discrimination Act which prohibits discrimination against individuals over the age of 40, as well as other important laws, such as the Occupational Safety and Health Act (OSHA) and the Family and Medical Leave Act (FMLA). On the other side, some people in society today would claim that the negative image of union workers as less productive and demanding of greater rewards is valid and has caused many American employers to lose jobs or even close their operations. Yet others may also contend that unions today are simply “out of touch” or “not relevant” in today’s global economy.

Communities in some cases have unique perspectives on unions because the actions of a union may have significant impact on a particular community. Consider, for example, Fond du Lac, Wisconsin, a city of 43,000 people on Lake Winnebago whose largest employer is Mercury Marine. Mercury Marine, a division of Brunswick Corporation, made outboard engines in Fond du Lac for over 30 years in 2009, when the community was severely shaken because the company announced it would move the plant and its 2,000 jobs to Stillwater, Oklahoma. Why the unexpected exit from Wisconsin? Because the members of the International Association of Machinists and Aerospace Workers’ Local 1947 had rejected a labor contract that required significant health care cost increases for the workers and a three- year wage freeze. The night after the workers voted to reject the deal, Mercury announced it would begin moving operations to another facility in Stillwater, Oklahoma. Larry Brown, president of the Chamber of Commerce in Stillwater, announced the next day that preparations for the move had begun and Stillwater was excited about the new jobs. But then union workers in Fond du Lac, without the approval of their leadership, began a petition for a new vote—and thus the two communities in Wisconsin and Oklahoma were confused, angry, and hopeful because the outcome meant prosperity or severe hardship with 2,000 jobs and millions of development dollars at stake.4 This scenario or similar ones occur every year across the United States when the interactions between union and management impact the location of facilities and jobs vital to the economic health of communities.

“Are unions good or bad?” Perhaps what is most important when considering the pros and cons of unions is for you to think deeply about all three of these perspectives, as well as others that will be presented in this book, and then form your own opinion. You should be able to form your own opinion by understanding the different viewpoints and the multiple perspectives, facts, and reality, rather than the opinions of others.

10 Part I • Labor Relations Overview

WHY JOIN A UNION?

When employees are given the option of voting in a secret-ballot election to have a union represent them with management, or to not have union representation, or in other situations when they can choose to join the union which does represent them, or choose not to join, why do some decide in favor of a union, and others do not? Labor research has not provided an exact answer to this question, but it has provided a list of issues that are influential to workers’ decisions:5

• Job security. Above all, employees want protection from unfair or arbitrary decisions by management. In cases of layoffs they expect seniority to be followed, and in cases involving discipline and discharge, they expect the union to provide them with experienced advice and counsel.

• Wages and benefits. This is the “bread and butter” issue for many workers. They expect contract negotiations to provide them with better wages and benefits than their nonunion counterparts—at least by a difference that exceeds their union dues.

• Working conditions. Workers expect the union to protect them by negotiating for a safe and healthy working environment.

• Fair and just supervision. Workers expect that the grievance and disciplinary process negotiated by the union in the CBA will provide them protection against biased or unreasonable supervisors. Most CBAs require the “just cause” standard in disciplinary cases, which is a basic principle followed by arbitrators and judges.

• Need to Belong. A strong need in many individuals is the need to belong to a larger group that shares one’s values and concerns. A union often gives employees a mechanism for bringing them together and social network.

• Collective voice. A basic principle of unionization is “strength in numbers,” and therefore the individual employee believes he or she has a more powerful voice when dealing with management. To a large extent the labor union is an entity developed as a means by which individuals could unite and have the collective power to accomplish goals that could not be accomplished alone. Whether that power was used to increase take-home wages, to ensure job protection, to improve working conditions, or simply to sit across the bargaining table as an equal with the employer, members believed that in union there is strength.6

HARD AND SOFT ISSUES Some people view all union–management issues as either “hard”— meaning economic gain (wages and benefits) and job security—or “soft”—meaning how they are treated by management and coworkers. Unions have often been viewed by their members and others as pragmatic organizations primarily seeking to improve the hard issues—the economic conditions of their members. For example, the average 2010 union hourly wage was $22.75, or 19 percent more than the average nonunion wage of $19.04 an hour. However, even greater is the difference in benefits between union workers at $13.88 an hour and nonunion workers at $7.33 an hour, as seen in Table 1-3. The success of their unions’ activities can be measured by the improvements in members’ working conditions and the perception members have of the union’s effectiveness. As the workforce changes, unions need to change the way they attract members But first, they need to understand what has attracted workers to unions in the past and why many of those now in the workforce have not been attracted to unions.

TABLE 1-3 Union v. Nonunion Hourly Wage and Benefit Differences, 2009 (Average of U.S. Workers)

Per Hour Compensation Union ($) Nonunion ($) Difference ($) Difference (%)

Total compensation 36.62 26.37 10.25 38 Wages and salaries 22.75 19.04 3.71 19 Benefits 13.88 7.33 6.55 89

Source: U.S. Bureau of Labor Statistics. Employment and Earnings (January 2009).

Chapter 1 • Introduction to Labor Relations 11

In addition to the economic benefits unions provide their members, in comparison with nonunion workers, Joe Twarog, associate director of Labor Education, has summarized other benefits. These noneconomic benefits generally include job security, protection against discretionary actions, and due process and are summarized in Table 1-4.

In a survey of labor leaders around the country, the four most important factors affecting the health of the American labor movement were the following:

1. Collective bargaining rights 2. Leadership in the labor movement 3. Union member solidarity 4. Action of the NLRB

TABLE 1-4 Union Members’ Perceived Differences Between Union and Nonunion Workplace Benefits

Benefit Union Nonunion

Due process The union contract provides each bargaining unit member with access to “due process” through the grievance and arbitration procedure.

No formal grievance process with arbitration. In some cases, there may be an internal, self-policing “appeals” process that is ultimately unenforceable.

Wages, benefits, and working conditions

These are negotiated. All members have the opportunity to improve their working conditions through contract negotiations at the bargaining table.

All are unilaterally set by the employer. No avenue for employee input. Management gives what it wants to.

Hiring, promotions, transfers, layoffs

All are governed by the contract. Seniority and other objective standards apply.

All are determined unilaterally and subjectively by the employer.

Changes in working conditions

The negotiated contract establishes all working conditions. These can only be changed by negotiations between the parties.

Changes can be made at any time, without warning, by the employer alone.

Discipline Any disciplinary action is usually subject to the “just cause” standard, meaning that there is a burden of proof on the employer to justify the discipline.

Workers are “employees at will,” meaning that they are subject to discipline and termination for no reason at all, depending on the desires of the employer. No just cause standard applies.

Weingarten rights These rights allow an employee to have a union representative present during investigatory meetings when discipline may result.

No such rights. Recently, the National Labor Relations Board reversed its position and took away these rights in nonunion facilities.

Voice in the workplace Employees have a real and formal voice in their working conditions at the bargaining table.

Employers may listen to the employees and then do whatever they choose to do, regardless.

Access to information The union, through its officers and representatives, has access to information to investigate grievances and for contract negotiations.

Employees have no rights of access to information. The employer tells employees what it wants to do. Information is closely guarded.

Voice in patient care Through the contract, RNs can negotiate enforceable language on staffing levels, mandatory overtime, floating, and other issues that impact directly on patient care and the quality of health care.

In some facilities, RNs may be afforded the opportunity to make suggestions on some issues that management is then free to ignore. None of the nurse input is enforceable.

Source: Joe Twarog, “The Benefits of Union Membership: Numerous and Measurable,” Massachusetts Nurse 76, no. 4 (May 2005), p. 6. Used by permission.