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Management Rights in a Campaign • Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate through supervisors and group meetings. – Hire consultants to work against unionization. – Point out the financial costs of a union. – Safeguard employee names and addresses (until the NLRB orders an election). 5-1 © SHRM

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Page 1: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Management Rights in a Campaign

• Management has the right to:

– Speak out against the organizing attempt.

– Point out the consequences of a strike.

– Communicate through supervisors and group meetings.

– Hire consultants to work against unionization.

– Point out the financial costs of a union.

– Safeguard employee names and addresses (until the NLRB orders an election).

5-1© SHRM

Page 2: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Neutrality Agreement

• Contract between a union and an employer under which the employer agrees not to oppose a union’s attempt to organize its workforce.

• Common provisions include:− Gag rule.

− No secret ballot election.

− Union access to employer premises.

− Union access to personal employee information.

− Employee attendance at “captive audience” speeches.

5-2© SHRM

Page 3: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Authorization Cards

• Before ordering an election, the NLRB requires at least 30% of eligible employees to sign authorization cards.

• The union typically wants 50% of eligible employees to sign authorization cards before they petition for an election.

5-3© SHRM

Page 4: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Petition for Certification

• Petition for certification generally leads to an election supervised by the NLRB.

5-4© SHRM

Page 5: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Types of Elections

5-5© SHRM

Page 6: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

NLRB Determinations

5-6© SHRM

Page 7: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

In determining the appropriateness of a bargaining unit, the NLRB would consider

A. if more than 50% of the employees signed authorization cards.

B. if employees are frequently transferred across plants or offices.

C. the percentage of temporary workers in the proposed unit.

D. the percentage of managers and supervisors in the workforce.

Answer: B5-7© SHRM

Page 8: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Bars to the Election Process

• Contract bar

• Statutory bar

• Certification-year bar

5-8© SHRM

New NLRB ruling:

Voluntary-recognition bar (which precludes a decertification election for 12 months after union recognition) does not apply when recognition is voluntary and based on a card check.

• Blocking-charge bar

• Prior-petition bar

• Voluntary-recognition bar

• Recognition bar

Page 9: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Voter Eligibility

• Eligible employees must be on the payroll:– During the pay

period prior to the direction of election.

– During the pay period preceding the election date.

• Striking employees who have been permanently replaced:– May vote in any

election conducted within 12 months after the strike’s commencement.

• Election time and place– Employers must post

NLRB notices.

5-9© SHRM

Page 10: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Election Campaign

• Once the election is scheduled, the campaign escalates.

• Management has a captive audience advantage and can present speeches during working hours.

5-10© SHRM

Page 11: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Election

• Challenges must be made before the vote is accepted into the ballot box.

• NLRB determines validity of challenged ballots after the election if they have potential to affect the outcome.

5-11© SHRM

Page 12: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

The NLRB has scheduled an election. Within seven days, the company must file the

A. names and addresses of all employees eligible to vote.B. telephone numbers of all employees eligible to vote.C. company policies that deal with time off for voting.D. names of employees the company feels should not be

eligible to vote.

Answer: A

5-12© SHRM

Page 13: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Counting of Eligible Votes

• Unchallenged ballots are counted immediately after the election.

• Of those casting a ballot, a simple majority + 1 is required for certification.

• If 1,000 are eligible to vote but only 800 vote, 401 votes are needed for certification.

• A tie results in no certification.

5-13© SHRM

Page 14: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Certification

• If the union loses, the NLRB certifies the election results.

• If the union wins, the NLRB certifies it as the exclusive representative of the bargaining unit.

5-14© SHRM

Page 15: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Other Paths to Unionization

• Employer volunteers recognition based on proof of majority status in accordance with neutrality agreement.

• Union convinces employer to grant recognition.

• Union convinces employer to witness its majority status.

• NLRB orders employer to bargain with the union if serious ULPs have been committed.

5-15© SHRM

Page 16: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Union Decertification

• Terminates union representation.

• Management may not guide or support the effort.

• At least 30% of the employees in the bargaining unit must petition for a decertification election.

• If the petition is valid, a secret-ballot election is held.

• A majority of the voting employees must approve decertification (a tie vote also removes the union).

5-16© SHRM

Page 17: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

If employees successfully vote to decertify a union on June 30 in a given year, what is the earliest date a new election can be held?

A. Within 30 days

B. Between 60 and 90 days

C. After January 1

D. After one year

Answer: D

5-17© SHRM

Page 18: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Union Deauthorization

• Removes the union’s authority to negotiate or enforce union security clauses.

• Occurs without management support or guidance.

• At least 30% of the employees in the bargaining unit must petition for deauthorization.

• After investigation, the NLRB orders an election.• A majority of the employees eligible to vote must

approve deauthorization (failure to vote is the same as a vote against deauthorization).

5-18© SHRM

Page 19: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Rights and Responsibilities

Employer Employee• Exercise freedom of

speech.

• File ULPs.

• Protect property.

• Discipline or terminate for just cause.

• Sign authorization card.

• Form a union.

• Strike.

• Circulate petition for redress of a grievance.

Agent-principal relationship: Employers are responsible for managers and supervisors; unions are responsible for agents and officers.

5-19© SHRM

Page 20: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Unfair Labor Practices

A violation of a right under labor-relations statutes.

Can be initiated by an individual employee, a union, or management.

The NLRB adjudicates ULPs in the private sector; the FLRA or state agency processes cases in the public sector.

5-20© SHRM

Page 21: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Employer ULPs:Interference, Restraint, and Coercion

5-21© SHRM

The NLRA prohibits employers from:

Page 22: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Avoiding ULPs

TT

II

PP

SS

Threaten.

Interrogate.

Promise.

Spy.

• To avoid ULPs, do not:

Be aware of agent-principal relationship.

5-22© SHRM

Page 23: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Other Employer ULPs

• Domination and unlawful support of labor organizations

– Electromation, Crown Cork and Seal Company, E. I. Dupont & Company

• Discrimination to discourage union membership

• Retaliation against employees who file charges or testify

• Refusal to bargain in good faith

5-23© SHRM

Page 24: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Union ULPs:Restraints and Coercion

5-24© SHRM

The LMRA prohibits unions from engaging in:

Page 25: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Union ULPs:Duty of Fair Representation

• Union must act fairly on behalf of all members.

• Union may not ignore grievances that have merit or base decisions on discrimination or personal feelings.

• Union must represent nonmembers in bargaining and grievance issues in the same way it represents dues-paying members.

5-25© SHRM

Page 26: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Other Union ULPs

• Forcing unlawful discrimination by the employer

• Excessive or discriminatory membership fees

• Refusal to bargain

• Featherbedding

A union cannot force an employer to commit an act in violation of contract provisions.

Fees must be appropriately based on industry wages and practices.

The union must bargain in good faith.

The union cannot require more workers than necessary.

5-26© SHRM

Page 27: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Collective Bargaining Process

Management representation

Unionrepresentation

Legal and regulatory factors

Public and employee opinion

Economic conditions

Bargaining precedents

Bargaining subjects:

topics, issues, and goals

SPHR only

5-27© SHRM

Page 28: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Collective Bargaining Subjects

• Benefits for retired union members

• Settlement of ULPs• Neutrality

agreements

• Closed shops• Discriminatory

hiring

Mandatorysubjects (required by law and NLRB)

Permissive subjects(voluntary)

Illegalsubjects(unlawful by statute)

SPHR only

• Overtime• Seniority• Vacation/holidays

5-28© SHRM

Page 29: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Collective Bargaining Patterns

Employer bargains with several unions simultaneously but on a separate basis.

Union negotiates agreements similar to those existing in the industry or region.

More than one employer negotiates with the union.

SPHR only

5-29© SHRM

Page 30: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Contract Negotiations

• Win-lose negotiation

– Positional

– Distributive

• Win-win negotiation

– Principled

– Integrative

– Interest-based

Good-faith bargaining requires that both parties enter into discussion with fair and open minds and a desire to reach an agreement.

SPHR only

5-30© SHRM

Page 31: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Violations of Good-Faith Bargaining

• Surface bargaining

• Lack of concession

• Refusal to advance proposals and demands

• Dilatory tactics

• Imposing conditions

• Bypassing the representative

• Commission of ULPs

• Refusal to provide information

• Refusal to bargain

SPHR only

5-31© SHRM

Page 32: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Other Bargaining Conditions

• Unlawful circumvention – Bargaining proposals not disclosed to the union may

not be discussed with employees.

• Notice requirements– The party desiring contract renegotiation must notify

the other party of its intention to bargain a new agreement.

• Duty of successor employers or unions– Selling a majority interest in a unionized company

does not affect the company’s bargaining obligations.

SPHR only

5-32© SHRM

Page 33: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Contract Clauses

• Union security clauses• Dues checkoff• Management rights• Employee seniority

and security (bumping)

• Compensation, benefits, and working conditions

• Strikes and lockouts

• Zipper clause

• Term of agreement

SPHR only

5-33© SHRM

Page 34: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Formal Grievance Procedure

SPHR only4.

Thirdparty

3.Higher-level management

2.Intermediate supervisor

1. Immediate supervisor

5-34© SHRM

Page 35: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

When handling a union grievance, you shouldA. accept informal amendments to the contract if they

are in the company’s interest.

B. avoid bias by not reviewing prior grievance records.

C. ask the union to identify the violated contract provisions.

D. rely on the union steward’s investigation of the grievance.

Answer: C5-35© SHRM

SPHR only

Page 36: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

The Weingarten Case

• Deals with the rights of union employees to have another person present during investigatory interviews.– When supervisors ask for information that

could lead to disciplinary action

– When employees are asked to defend their conduct

• Person attending must be affiliated with the union, not an attorney or relative.

5-36© SHRM

SPHR only

Page 37: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

An employer is conducting an investigatory interview with a union employee. According to the Weingarten rights, the

A. employer is obligated to provide representation if the employee cannot find anyone.

B. employee may request that a labor attorney be present.

C. employer is not required to inform the employee of these rights.

D. employee may request that the interview be postponed for 48 hours.

Answer: C5-37© SHRM

SPHR only

Page 38: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Arbitration

5-38© SHRM

SPHR only

Page 39: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

The Arbitration Process

Summation

Presentationof evidence

Award

Openingstatements

The arbitrator presents the decision in written format and signs it.

Both parties identify issues, state what is to be proved, and specify relief sought.

Parties present evidence and essential documents to prove their cases.

Both sides have equal time for closing arguments.

5-39© SHRM

SPHR only

Page 40: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Arbitration

5-40© SHRM

SPHR only

Page 41: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Lockouts and Strikes

5-41© SHRM

Page 42: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Protected Concerted Activities

• The right of a union to strike and picket

• The right of other employees not to cross a picket line

• The right of management to continue operations with:

– Supervisors

– Nonstriking regular employees

– Newly hired replacements

5-42© SHRM

Page 43: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Strike Categories

Sympathy

JurisdictionalWildcat

(unprotected)

ULP

Economic

StrikesStrikes

5-43© SHRM

Page 44: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Replacement of Strikers

Employer must reinstate striking workers.

Strike occurs asthe result ofULPs.

Employer is not required to displace permanent replacement workers except as future opportunities become available.

Strike is aneconomic strike.

5-44© SHRM

Page 45: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Legal Picketing During Strikes

Consumer

Common situs

Area- standards

Informational

PicketingPicketing

5-45© SHRM

Page 46: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Secondary Boycotts

• Directed at the primary party through action against a third party.

• Employers may lose neutrality and be subject to union pressure in the following cases:

– Ally doctrine

– Single/joint employer or alter ego doctrines

– Double breasting

– Straight-line operations

– Hot cargo clauses

5-46© SHRM

Page 47: Management Rights in a Campaign Management has the right to: – Speak out against the organizing attempt. – Point out the consequences of a strike. – Communicate

Which provision would allow a union to picket a chain of assisted-living facilities at all of their locations?

A. Ally doctrine

B. Common situs picketing

C. Single/joint employer doctrines

D. Straight-line operations

Answer: C5-47© SHRM


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