Fluent Essays

Questions in attachements Index/Document.iwa Index/ViewState.iwa Index/CalculationEngine-20361.iwa Index/AnnotationAuthorStorage-20360.iwa Index/DocumentStylesheet.iwa Index/DocumentMetadata.iwa Index/Metadata.iwa Metadata/Properties.plist Metadata/DocumentIdentifier 75C98755-5405-48D8-8550-95E0C9EF33C0 Metadata/BuildVersionHistory.plist Template: Blank (4.2) M8.2.1-6529-2 preview.jpg preview-micro.jpg preview-web.jpg Index/Document.iwa Index/ViewState.iwa Index/CalculationEngine-20361.iwa Index/AnnotationAuthorStorage-20360.iwa Index/DocumentStylesheet.iwa Index/DocumentMetadata.iwa Index/Metadata.iwa Metadata/Properties.plist Metadata/DocumentIdentifier B52D8DA7-9EDA-4026-AF08-301292100168 Metadata/BuildVersionHistory.plist Template: Blank (4.2) M8.2.1-6529-2 preview.jpg preview-micro.jpg preview-web.jpg Part II The Collective Bargaining Process Chapter 4 Establishing a Bargaining Unit and the Organizing Campaign United Parcel Service (UPS) voluntarily recognized new Teamster members after it purchased Overnite Transportation. Voluntary recognition by an employer, like UPS in this situation, is a seldom-used alternative to a secret-ballot election as a means for a union to obtain the right to represent employees. Source: © Jim West / Alamy. You can’t do it unless you organize! Samuel Gompers (Founder and First President of the American Federation of Labor) Chapter Outline 1. 4.1. Bargaining Unit Determination 2. 4.2. Union Structure 3. 4.3. Bargaining Unit Determination in the Public Sector 4. 4.4. Public Sector Unions 5. 4.5. The Organizing Drive 6. 4.6. Union Organizing Strategies 7. 4.7. Union Avoidance Strategies by Management 8. 4.8. Representation Election Procedures Labor News UPS Freight Workers Peacefully Join Teamsters UPS has had a generally positive relationship with the Teamsters Union. Thus, when UPS purchased Overnite Transportation (which became UPS Freight), management decided not to fight any attempt by the newly acquired workers to join the Teamsters Union, which already represented UPS employees. Instead, management chose to remain “neutral” and to recognize any Teamsters local union that collected signed authorization cards from a majority of its workers and not to require a secret-ballot election. The result was majorities of UPS Freight workers signed cards and were recognized in Milwaukee, Minneapolis, Southern California, Oakland, Seattle, New England, Memphis, Detroit, and Louisville. By 2010 the Teamsters represented over 12,400 UPS Freight workers in 42 states. Ira Rosenfeld, UPS executive, explained why management chose to recognize the new workers voluntarily: “UPS Freight and UPS have always respected the wishes of the employees and will continue to do so.” Source: Adapted from Bill Wolfe, “UPS Freight Workers Sign Up for Teamsters,” Louisville Courier-Journal (January 26, 2008), p. A1. The collective bargaining process is at the heart of the employer–employee relationship. That process, however, is not a simple one. The 1935 National Labor Relations Act, as subsequently amended, defines the process and limits the parties to it. A group of employees cannot simply present their requests to the employer. Procedures must be followed to determine if those particular employees are protected by the act. A union purporting to represent the employees must prove that it does indeed represent them. And any particular group of employees who feel they have similar interests and desires and therefore should negotiate together may not satisfy the requirements of the act as an “appropriate” unit of employees for collective bargaining purposes. This chapter explores the process by which a group of employees can organize for purposes of collective bargaining and be recognized by the NLRB as a bargaining unit. The organizational campaign strategies of both the union (in support) and management (in opposition) and representational election process are also discussed. Bargaining Unit Determination The NLRB, in carrying out its lawful responsibilities, decides representation cases. That is,  Section 7  of the Labor-Management Relations Act authorizes the board to decide on a case-by-case basis the  appropriate bargaining unit  of employees for collective bargaining purposes. The board exercises this power to guarantee employees the fullest freedom under the act—mainly, employees’ right of self-organization. The NLRB does not have rigid or constrictive regulations for dealing with recognition cases. It has wide discretion in its decisions, which courts will uphold unless they find that the board acted arbitrarily. 1  Both the board and the courts recognize that more than one unit sometimes may be appropriate for collective bargaining. The board is not required to choose the most appropriate unit, only an appropriate unit, as demonstrated in Case 4-1 which involves the service technicians and lube workers at a Ford truck dealership. Although there are no hard-and-fast rules in the act to determine appropriateness, there are certain limitations on the types of units and on workers to be included and excluded from units. The NLRB generally follows certain fundamental and logical policies in determining an appropriate bargaining unit. Appropriate Bargaining Unit The group of employees determined by the NLRB to be an appropriate unit for collective bargaining purposes. After a bargaining unit is identified, the employees of that unit have the right to select their bargaining representative, usually a labor union. CASE4-1 Appropriate Bargaining Unit: Ford Truck Dealership The company is a truck dealership that sells, modifies, and services light-duty and heavy-duty trucks. The company operates two facilities. The Main Facility is the primary location for sales and service of trucks. The second, known as the Annex, is across the street and operates under a different name. The Annex specializes in servicing, equipping, and modifying trucks. The central issue in dispute is whether the union designated an appropriate collective bargaining unit under the National Labor Relations Act. At the Main Facility, the service department consists of several service advisers who deal with customers seeking truck service, approximately 14 service technicians who diagnose and repair trucks, and two lube workers who perform lubes, oil and filter changes, and the like. The service technicians work either day or evening shifts. They are responsible primarily for the actual servicing and repairing of customer vehicles. Service technicians are paid an hourly wage, receive commissions based on their efficiency, and can receive commissions for additional work authorized by a customer on a technician’s recommendation. Service technicians are certified and are required to provide their own tools, wear blue uniforms with a company logo, and attend regularly scheduled meetings with management. The lube workers also work either day or evening shifts. They work alongside the service technicians and are responsible primarily for oil and filter changes and lubes. The lube workers are not certified and are paid hourly. One lube worker owns his tools; the other does not. The lube workers report to the same supervisor as the service technicians. At the Annex are several installer/fabricators, a parts employee, and an estimator. The installer/fabricators are technically part of the company’s service department. The Annex employees are responsible primarily for installing custom beds and other features on trucks sold by the company and those brought in for service or other work. Sometimes work is performed on the same truck at both locations, as when modifications are made to trucks bought at the main location, and some of the work is performed at the Annex, such as air conditioner and hitch installation. Installer/fabricators employed at the Annex must be able to weld and are administered a welding test prior to employment. Like the service technicians, the installer/fabricators are required to provide their own tools. There is only one shift at the Annex, however, and Annex workers have a different supervisor than the service department employees. Annex employees wear a different uniform and are paid an hourly wage without any commission or bonuses. The company employs one human resources manager for both facilities. The company’s parts and service director also interviews all applicants for either facility. Employees at both facilities are on the same payroll and have the same vacation and benefit policies as well as use the same break room, though there is an additional break room in the Annex. Employees are rarely transferred from one facility to the other. All the company employees attend occasional safety meetings and company functions. The union filed an election petition to represent a unit of employees at the Main Facility consisting of all full-time and regular part-time service technicians and lubricators. The NLRB certified the 16 employees at the Main Facility as an appropriate unit, and an election was held. The union won by a vote of nine to seven and was certified. The company, however, refused to bargain, contending that the group of employees designated as the bargaining unit was not the appropriate unit for collective bargaining. The company claimed that the board erred in its unit determination because there were other appropriate units. For example, the company believed that a pure “craft” unit consisting of the service technicians was a more appropriate unit because the lube workers have limited responsibilities and do not receive technician training or that a broader unit that included all the service department personnel at both locations would be a more appropriate unit because the employees performed functions related to the repair of trucks. Decision The Court noted that the National Labor Relations Act delegates to the NLRB the power to determine what an “appropriate” employee unit is for collective bargaining purposes. The Court will uphold an NLRB’s unit determination as long as the identified unit is appropriate and the decision is supported by evidence. The company’s position was that the unit certified by the NLRB was not appropriate because there were other potential units that could also be appropriate. But the existence of other “appropriate” units will not in and of itself invalidate a finding of the NLRB that the unit requesting recognition is an appropriate unit. In this case, placing the lube workers in the same unit as the service technicians made sense because of all the workers at the Main Facility, these were two groups of workers who actually performed mechanical work. And although there might have been similarities between the workers in the Main Facility and in the Annex, there were also differences. The Annex workers performed different functions and were required to have different skills. They worked different shifts and were compensated differently. The Court upheld the NLRB decision that the service technicians and the lube workers were an appropriate unit. Source: Adapted from Country Ford Trucks, Inc. v. NLRB and International Assoc. of Machinists and Aerospace Workers, AFL-CIO, Local 1528, 165 LRRM 2649 (2000). Most contracts contain an article that specifies the recognition of the union as the representatives of the bargaining unit, such as this example: Article I Recognition · Section 7  The Company recognizes the Union, during the term of this Agreement, as the sole and exclusive representative of the employees in the bargaining unit defined as “The Electrical Workers Unit” by the National Labor Relations Board in its Decision and Direction of Election dated August 12, 1944, for the purpose of collective bargaining with respect to rates pay, wages, hours of employment and other conditions of employment. 2 Bargaining Unit The bargaining unit is defined as the particular group of employees represented by the union in collective bargaining. The union has exclusive bargaining rights for all employees within the unit, whether they join the union or not; and it has no rights for those employees outside of the bargaining unit. The determination of exactly which employees are within the bargaining unit may have a great effect on the outcome of the organizing campaign. The union seeks a unit in which it feels it can win a majority of the vote in a representation election. When the employer and union cannot agree on the unit, the NLRB, under  Section 7  of the National Labor Relations Act, decides on “the unit appropriate for the purposes of collective bargaining.” 3 Appropriate Unit The basic underlying principle for the NLRB’s determination of an appropriate unit is that only employees having a substantial mutuality of interest in wages, hours, and working conditions can be appropriately grouped in that unit. The logic is that the greater the similarities of working conditions, the greater the likelihood the unit’s members can agree on priorities and thus make the collective bargaining process successful. 4 The criteria that are most often used in deciding what constitutes a rational unit include community of interest, history of bargaining, desire of employees, prior unionization, relationship of the unit to the organizational structure, and public interest. Community of Interest The  community-of-interest doctrine  attempts to quantify, by means of descriptive criteria, when workers should feel that their individual interests are so similar that collective bargaining will be fruitful. The board has at various times enumerated these criteria: similarity of job functions and earnings, in benefits received or hours worked, and/or in job training or skills required; a high degree of contact and interchange among the employees; and/or geographic proximity and common supervision. 5  All these factors can indicate a common interest or interests that, coupled with the other listed criteria, establish an appropriate unit. Community of interest Criteria used by the NLRB to evaluate a group of employees and determine whether they constitute an appropriate bargaining unit, including; similarity of jobs, and wages & benefits; degree of contact and proximity; and common supervision. The NLRB’s decisions in this area are subject to change, however. For example, in a 2000 decision, the NRLB ruled that a group of temporary employees at M. S. Sturgis, Inc. showed “a sufficient community of interest” with permanent employees to be added to the bargaining unit. 6  The “temporary employees” were subject to the same supervision, worked the same hours, and performed the same work side by side with the permanent workers who were part of a bargaining unit. This ruling reversed a 1990 NLRB ruling and was widely touted as giving about 5.7 million temporary employees collective bargaining rights for the first time. 7  In 2004, the NLRB reversed its decision in M. S. Sturgis in Oakwood Care Center and ruled that full-time employees of one employer could not be in the same bargaining unit as employees who were jointly employed (i.e., as temporary employees with a joint but separate employer). Oakwood, a long-term residential care facility, had its own employees, and it used a temporary service for additional employees. All the employees were supervised and disciplined by Oakwood supervisors, and Oakwood and the temporary service jointly determined the pay and benefits of the temporary employees. The NLRB acknowledged that under the Sturgis case, the temporary employees would have been a part of the bargaining unit. In overruling Sturgis, the NLRB, in a 3–2 opinion, stated that grouping employees of different employers into the same bargaining unit violates the act’s purpose of protecting employee rights by subjecting the employees to fragmented bargaining and inherently conflicting interests. 8 History of Bargaining If a bargaining unit and a particular employer have a history of bargaining, the board will recognize the appropriateness of the unit, in the absence of compelling reasons to the contrary, to ensure the employees’ right of self-organization and most importantly to provide a climate of stable labor relations. History of bargaining usually becomes a question when the board receives a request for decertification to allow for smaller or different bargaining units or when a new class of employer has come under the board’s jurisdiction, such as when the National Labor Relations Act was extended to the health care industry. Although the board favorably considers prior bargaining relationships, such histories are not absolute. The board has disregarded history of bargaining in several cases when that history contravened the board’s policy of mixing clerical and production and maintenance personnel, when it was based on oral contracts, and when it reflected racial or sexual discrimination. 9 Employee Wishes The  Globe doctrine  established the NLRB policy to give weight to employee wishes when determining an appropriate bargaining unit. 10  Although the board cannot delegate the selection of a bargaining unit to employees, it may use the election process as a way to consult employees. In the Globe case, the board provided for special balloting to determine the representation wishes of the employees. The situation involved both a small craft unit and a large industry unit, and both could be appropriate. By permitting the employees in the smaller unit to indicate their preference, the board was able to decide whether to leave the craft group in the smaller bargaining unit or to combine it with the larger group. 11  Such consultation is especially helpful if two or more bargaining units are considered about equally appropriate by the board’s otherwise objective standards. Globe doctrine The policy set by the NLRB to help it determine the representation wishes of employees when establishing an appropriate bargaining unit. The board may use the secret ballot election process as a means of giving weight to the desires of a group of employees, such as a smaller craft group within a larger industrial group. Employee Unionization The NLRB considers the extent of unionization by a bargaining unit as one factor in unit determination but not as a controlling factor. The question is still one of appropriateness and not of whether the wishes of a union can be honored. If the bargaining unit is otherwise appropriate, prior unionization can be considered to indicate employee wishes. The Unit and Employer Organizational Structure As discussed earlier, the considerations used to determine appropriateness are not legally binding formulas but an exercise in rational examination of the facts of an individual case. The NLRB recognized this distinction from its earliest decision. In Bendix Products Corporation, the board stated, “The designation of a unit appropriate for the purposes of collective bargaining must be confined to evidence and circumstances peculiar to the individual case.” 12  Under such a philosophy, an employer may, because of its relationship to branch offices or particular reporting policies, make an otherwise inappropriate unit appropriate for its employees. Thus in some cases the organizational structure and geographic locations may affect the decision on the bargaining unit. The board must examine, in some cases, the internal operations of a company to ascertain those peculiarities. Public Interest One consideration added by the courts for review by the board is the public interest. Without much guidance provided by the courts, the board is to ascertain when its decision will serve the public interest. In making this determination, the NLRB must not be affected by the desires of the parties involved. 13 Accretion When new employees or positions are added by an employer,  accretion  allows the NLRB to consider adding the new groups of employees directly to existing units if their work satisfies the same criteria as the original unit, that is, community of interests, bargaining history, interchange of employees, geographic proximity, common supervision, and union wishes. However, such a determination is not automatic. If the new class of employees retains a separate identity, perhaps by virtue of its newness, it can be determined an additional appropriate unit. Accretion usually occurs when an employer expands operations, builds a new facility, or merges with another employer. It is often to the advantage of the union to have an accretion since it adds more employees to the bargaining unit. 14  Accretion offers the board a conflicting choice. Adding new employees to an established union preserves the stability so important under the act, but squeezing in new employees, under perhaps narrow similarities, constricts the employees’ freedom of choice. Accretion The practice of allowing the addition of new employees and jobs to existing bargaining units provided their work satisfies the same criteria of the original unit. For example, in 2009 the NLRB ruled that baristas working at a Starbucks franchise in a Hilton hotel restaurant should be a separate bargaining unit, and not accreted to the existing restaurant employees unit. The board found there was not sufficient community of interest between the Starbucks and hotel employees because there was no common supervision, no regular contact, and a lack of integration of work with the hotel restaurant workers. Starbucks exercised significant control over its own operation, including service rules, food supplies, and training of employees. In addition to specialized coffee drinks, Starbucks employees sold merchandise while other hotel employees did not. The hotel employees’ handbook, however, did cover the baristas as well as other employees in the bargaining unit and hotel management hired all the employees. UNITE HERE, the union that represents the other hotel employees, had requested that the baristas be accreted; the hotel, however, opposed the accretion. 15 Stipulated Units The board’s authority to determine an appropriate unit is not without limitations. A company and a union may stipulate to the board what they consider an appropriate unit. The courts have said that the board may not alter the bargaining unit in such cases. However, a stipulated unit may not violate principles in the National Labor Relations Act or established board policy, for example, by including supervisors. 16 Supervisors Supervisors, by the nature of their work, generally are considered management under the NLRA and thus excluded from any bargaining unit—or from the collective bargaining The NLRB in a 2009 case decided that Starbucks employees working inside the Hilton Milwaukee City Center should not be accreted to an existing restaurant bargaining unit, but instead should have their own bargaining unit. Source: Getty Images. rights granted under the act. As the workplace has become more complex and jobs more varied, the exact definition of a “supervisor” under the NLRA has become an issue debated in the U.S. Congress and by labor experts. The National Labor Relations Act defines a supervisor as “someone using independent judgment to assign and direct the work of other employees in the interest of the employer.” In 2007, the Re-employment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act was filed in Congress to amend the NLRB definition of supervisors. The bill would delete the words “assign” and “responsibility to direct” from the definition and would require that employees must be in a supervisory role for at least 50 percent of their work time to be classified as a supervisor under the NLRA. Supporters of the RESPECT Act believe that employees, including team leaders, contraction foremen, and nurses, are not primarily management and should have collective bargaining rights. Opponents believe the bill would make a significant change from the past 60 years. 17 The lines drawn by court rulings and board interpretations are never exact. In National Labor Relations Board v. Yeshiva University, it was determined that the faculty members were managerial employees because of their input into the academic product of the university. As managerial instead of professional employees, they did not come under the protection of the National Labor Relations Act and could therefore not be recognized. Such a determination has a negative effect on unionization in the academic sector. 18  In 2004, the NLRB ruled that graduate teaching assistants are students and thus have no right to organize. This ruling overturned a 2000 NLRB decision that required New York University to recognize a graduate teaching assistants’ union. The 2000 NLRB ruling sparked a wave of union organizing efforts on private university campuses across the Northeast, including Brown, Columbia, Temple, Harvard, Cornell, Tufts, and the University of Pennsylvania: 24 campuses altogether with over 40,000 teaching and researching assistants represented by unions. Then, in 2004, a new NLRB “loaded with Bush appointees reversed the 2000 ruling.” 19 Types of Units Certain types of units have evolved within the established principles of appropriateness. The act itself lists employer units, craft units, plant units, or their subdivisions. Craft Units Workers whose jobs primarily require a recognized skill, such as electricians, machinists, and plumbers may compose a  craft unit  . Recognition questions for craft units usually come before the board when a group of craft employees wants to break away from an existing industrial union which included many different skills job functions—this action is called craft severance. Congress has established the policy that the board cannot determine a craft unit inappropriate on the grounds that a different unit has been established by prior board determination, unless the majority of the employees in the craft unit vote against separate representation. Despite this legislative policy, the NLRB has severely limited craft severance elections through a number of decisions. Under the National Tube doctrine, 20  the board identified certain industries whose operations were so integrated that craft workers could not be taken from the unit without affecting the stability of labor relations. And in the Mallinckrodt Chemical Works decision, the board outlined the criteria it would use to allow craft severance; the application of these standards has greatly reduced incidents of craft severance. 21 Craft unit A bargaining unit composed exclusively of workers with a specific and recognized skill, such as electricians or plumbers. The NLRB requires that the craft group be distinct from others in the unit by virtue of the skilled, nonrepetitive nature of its work. The board examines the extent to which the group has retained its identity or, as the alternative, actually participated in the affairs of the larger unit. The impact of separating the craft unit from the whole is also a factor in the board’s determination. Consideration of the particular bargaining history of the larger unit, as well as the history of collective bargaining in the industry as a whole, must be part of the board’s deliberations. In some instances, the NLRB decision is influenced by the degree to which the craft work is integrated with the unskilled work and therefore essential to the production process. Finally, the board may examine the qualifications of the union seeking to represent the craft union for its experience as an agent for similar groups. 22 The International Brotherhood of Electrical Workers (IBEW) is known as a craft union because most of the members have a recognized skill—they work with electrical components and equipment as line technician, repairers, machine operators, meter installers, boiler operators, cable splicers, welders, and the like. Source: AP Images. Departmental Units Similar to a craft unit, a  departmental unit  is composed of all the members of one department in a larger organization. The board uses standards similar to those used for craft severance in determining one department to be an appropriate unit separate from the entire plant or company. An examination of the difference in skills and in training, the degree of common supervision, the degree of interchange with employees outside the department, and different job performance ratings have been used to allow a departmental unit to exist. 23 Departmental unit Similar to a craft unit, a departmental unit is composed of all the members of one department in a larger organization. One Employer, Multiple Locations Many employers have plants, facilities, or stores at more than one location. And the NLRB must determine if a single location can be an appropriate unit or whether all locations should constitute a single unit. It is well established that a petitioned-for single facility unit is presumed to be an appropriate bargaining unit. 24  That presumption, however, is rebuttable on a showing that the single facility has so effectively merged into a more comprehensive unit, or is so functionally integrated, that it has lost its separate identity. To determine whether the single-facility presumption has been rebutted, the board looks at such factors as the centralized control over daily operations and labor relations; extent of autonomy of the local management to handle the facility’s day-to-day ordinary operations and to supervise the employees’ day-to-day work; similarity of employee skills, functions, and working conditions; extent of employee interchange; geographic proximity; and bargaining history, if any. 25  The party opposing the single-facility unit has the burden of rebutting its appropriateness. However, the board does not require overwhelming evidence of such integration. In one, the board …