Employee and Labor Relations Flashcards
(152 cards)
1
Q
common law doctrines
A
Case law. Most common is the concept of employment at will. Also include respondeat superior, constructive discharge, and defamation.
2
Q
Payne v. The Western & Atlantic Railroad Company (1884)
A
Defined employment at-will as: “either party may terminate the service, for any cause, good or bad, or without cause, and the other cannot complain in the law.” Employers can change employment conditions, whether it is to hire, transfer, promote, or terminate an employee, at their sole discretion. It also allowed employees to leave a job at any time, with or without notice.
3
Q
employment contract as an exception to employment at-will
A
Contract can be express or implied.
4
Q
express employment contract
A
Express contracts can be verbal or written agreements in which both parties state exactly what they agree to do. Employers have been known to express their gratitude for a job well done with promises of continued employment, such as “keep doing the kind of work you’re doing and you’ll have a job for lief” or “you’ll have a job as long as we’re in business.” This can invalidate employment at will.
5
Q
implied employment contract
A
Can be created by an employer’s conduct and need not be specifically stated. An employer’s constant application of a progressive discipline policy can create an implied contract that an employee won’t be terminated without first going through steps set forth by the policy. A disclaimer can offset the effects of an implied contract; however, there is little agreement in the courts as to what and how the disclaimer must be presented in order to maintain at-will status. It is generally agreed, however, that the goal of a disclaimer is to be fair and honest with the employee about their expectaions, and to remind employees that no statement may alter the at-will status of employment.
6
Q
statutory exceptions to at-will employment doctrine
A
You can’t terminate an employee for any of the discriminatory reasons laid out in law (ADA, Title VII, FMLA, etc)
7
Q
public policy exceptions to at-will employment doctrine
A
You can’t fire an employee for:
- refusing to break the law on behalf of the employer (Petermann v. International Brotherhood of Teamsters)
- reporting an illegal act of the employer (being a whistle-blower)
- participating in activities supported by public policy, such as cooperating in a government investigation of wrongdoing by the employer
- acting in accordance with a legal statute, such as filing worker’s comp or attending jury duty
8
Q
Petermann v. International Brotherhood of Teamsters
A
Public policy exceptions to employment at will doctrine. “Employer can’t discharge an employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute.” Has been carried over to mean that an employer can’t discharge an employee for refusing to break any law on behalf of the employer.
9
Q
duty of good faith and fair dealing
A
tenet of common law - parties of a contract have an obligation to act in a fair and honest manner to ensure that benefits of a contract may be realized. Application varies from state to state in employment issues.
10
Q
promissory estoppel
A
Occurs when an employer entices an employee or prospective employee to take an action by promising a reward. The employee takes the action, but the employer doesn’t’ follow through on the reward. For example, an employee promises a job to a candidate who resigns another position to accept the new one, and then the candidate finds the offered position has been withdrawn. IF a promise is clear, specific, and reasonable, and an employee acts on the promise, the employer may be required to follow through on the promised reward or pay equivalent damages.
11
Q
fraudulent misrepresentation
A
Relates to promsies or claims made by employers to entice candidates to join the company. Ex - a company decides to close a location in 6 months, but needs to hire a general manager to run it in the mean time. If when asked about the future of the company during the recruitment process, the company tells candidates the plant will be expanded and withholds the intention to close the plant, the company fraudulently misrepresented the facts.
12
Q
respondeat superior
A
Employer can be held liable for actions of its employees that occur within the scope and course of assigned duties or responsibilities in the course of their employment, regardless of whether the act is negligent or reckless (including sexual harassment, auto accidents on the job). Can also come into play if a manger promised additional vacation time to a candidate and the candidate accepted the position based on the promise. Even if the promise wasn’t in writing and was outside the employer’s normal vacation policy, and the manager made the promise without prior approval, the employer could be required to provide the benefit.
13
Q
constructive discharge
A
Occurs when an employer makes the workplace so hostile and inhospitable that an employee resigns. Legal standard varies between states - some require the employee show the employer intended to force the resignation, other only require the employee show the conditions were sufficiently intolerable that a reasonable person would feel compelled to resign or have knowingly permitted intolerable conditions (sexual harassment).
(dude from Office Space!)
14
Q
defamation
A
Communication that damages an individual’s reputation in the community, preventing them from obtaining employment or other benefits. When an employer, out of spite or with a vengeful intent, sets out to deliberately damage a former employee, the result is malicious defamation.
15
Q
qualified privilege
A
Protects employers against defamation claims in providing references if the info they provide is job-related, truthful, clear, and unequivocal.
16
Q
sexual harassment
A
Title VII of the Civil Rights Act requires employers provide a workplace free from sexual harassment. There are two types of harassment: quid pro quo and hostile work environment.
17
Q
quid pro quo sexual harassment
A
Occurs when a supervisor or manager asks for sexual favors in return for some type of favorable employment action.
18
Q
hostile work environment - sexual harassment
A
Defined by the EEOC as one in which an individual or individuals are subjected to unwelcome verbal or physical conduct when submission to or rejection of this conduct explicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. EEOC looks at number of occurrences, type of action, who the action was directed towards. Courts have held employers liable for the harassing actions of their employees, whether or not the employer was aware of the harassment.
19
Q
Meritor Savings Bank v. Vinson (1986)
A
The mere existence of a grievance procedure and a policy against discrimination is not enough to protect an employer from the acts of its supervisors. Policies should be designed to encourage victims of harassment to come forward.
20
Q
Harris v. Forklift Systems (1993)
A
The appropriate standard for a hostile work environment is one that falls between what is merely offensive and that which results in tangible psychological injury. Although not precise, it allows courts to take into consideration factors about work environment, frequency and severity of conduct, level of threat or humiliation to which the victim is subjected, and whether the conduct interferes unreasonably with performance of the employee’s job.
21
Q
Faragher v City of Boca Raton (1998)
A
Employers are responsible for actions of those they employ and have a responsibility to control them. Supervisors need not make an explicit threat of an adverse tangible employment action for harassment to be actionable. Subordinates know that the possibility of adverse supervisory actions exists whenever requests are made, even if the adverse actions aren’t stated.
22
Q
tangible employment action (TEA)
A
significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits
23
Q
Burlington Industries v. Ellerth (1998)
A
Established that employers have vicarious liability for employees victimized by supervisors with immediate or higher authority over them who create an actionable hostile work environment.
24
Q
vicarious liability
A
an employer may be held accountable for the harmful actions of the employees, whether or not the employer is aware of them.
25
Oncale v. Sundowner Offshore Services (1997)
Prevented male-on-male harassment. Even though the intent of Title VII was to protect women in the workplace, "sexual harassment of any kind that meets the statutory requirement" must be covered as well.
26
Medina Rene v. MGM Grand Hotel, Inc
Title VII doesn't explicitly offer protection on the basis of sexual orientation, but when Rene was harassed due to his sexual orientation, the court found the conduct to be discriminatory.
27
EEOC Guidelines for Prevention of Sexual Harassment
1. Develop anti-harassment policy. Should state was is unacceptable conduct.
2, Provide clear complaint procedures for those who believe the have been harassed. Should reassure employees who complain will be protected from retaliation. Should provide multiple avenues for reporting and provide assurance of confidentiality.
3. Investigations should be prompt and impartial.
4. If investigations find harassment did occur, the policy should provide for immediate corrective action.
28
employer liability in sexual harassment cases
Liability always exists if there is a TEA. If there is no TEA, liability may be avoided with an affirmative defense including the following:
- The employer exercised reasonable care to prevent and correct promptly any harassing behavior (followed EEOC guidelines)
- The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or otherwise avoid harm.
29
Glass Ceiling Act
Established a commission to determine whether a glass ceiling existed, and if it did, to identify the barriers to placing more women and minorities in senior management positions. Commission found that belief in need for women and minorities in key positions wasn't shared in all management levels. Three barriers:
- societal - bias and educational opportunities
- internal business structures - outreach, recruiting, training, mentoring
- governmental barriers - EEO and statistics
As a result, EEO conducts audits to make sure women are at all levels in orgs.
30
Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994
Enacted to protect the rights of reservists called to active duty. Provides reemployment and benefits rights and is administered through the Veterans Employment and Training Service (VETS) of the DOL. Applies to all public and private employers in the US, including the federal government.
31
USERRA coverage
- covers all employers
- covers all members of uniformed services
- prohibits discrimination due to past, current, or future military obligations
- in addition to service during war or national emergency, USERRA protects voluntary or involuntary service such as active duty, training, boot camp, reserve weekend duty, National Guard mobilizations, and absence due to required fitness-for-duty exams
32
USERRA notice requirements
- employees must give verbal or written notice that they have been called to active service. if the employee is unable to give notice, a military representative may provide the notice.
- if military necessity prevents advance notice, or if giving notice is impossible or unreasonable, employees are still protected
- to be eligible for reemployment rights, employees must report back to work within the reasonable time frames that vary according to length of service
33
USERRA leave durations
- employer must grant a leave of absence for up to 5 years
- types of leave protected without time limits include boot camp, initial service period, waiting for orders, and annual 2 week mandatory training
- employees are permitted to moonlight during off-duty hours without losing reinstatement rights
- employees don't lose reinstatement rights if they leave their jobs to prepare for mobilization but mobilization is canceled.
34
USERRA compensation requirements
- employers are not required to pay employees during military leave absences, unless they have a policy of doing so
- Employers may not require employees to apply accrued vacation pay to their military leaves, but employees may choose to do so
35
USERRA benefit protection requirements
- employees on military leave are entitled to the same benefits employers provide for others on a leave of absence
- employers continue to accrue seniority and other benefits as though they were continuously employed
- for leave greater than 30 days but less than 240 days, employers must offer COBRA coverage on the request of the employee. If less than 31 days, employer must continue regular coverage.
- returning service members are entitled to participate in any rights and benefits provided to employees returning from nonmilitary leave of absence
36
USERRA pension protection
- employee pension rights are protected by USERRA
- vesting and accrual for returning service members are treated as though there was no break in employment
- employer pension contributions must e the same as though the military leave didn't occur
- for defined-contribution plans, service members must be given three times the period of the military absence to make up contributions that were missed during the leave. Plans with an employer matching component are required to match the funds.
37
USERRA reinstatement rights
Employers must promptly reinstate employees to positions the employees would have earned had they remained on the job, referred to as an escalator position. Temporary, seasonal, and contract employees do not have reinstatement rights. Reemployment rights are forfeited in the case of a dishonorable discharge.
38
USERRA continued employment requirements
Employers cannot discharge an employee without cause for 6 months if they've been gone less than 6 months. If they've been gone more than 6 months, employers can't discharge an employee for a year
39
USERRA and disabled veterans
Employers must make reasonable accommodations to provide training or retraining to reemploy a service member disabled as a result of service. If reasonable accommodation creates an undue hardship, reemployment can be made to a position "nearest approximate" in terms of status and pay with the full seniority to which the person is entitled.
40
USERRA reemployment reporting times for 1-30 day absence
first regularly scheduled workday that begins 8 hours after end of service completion
41
USERRA reemployment reporting times for 31-180 day absence
Submit application for reemployment no later than 14 days after the end of service, or on the next business day after that.
42
USERRA reemployment reporting times for more than 181 day absence
Submit application for reemployment no later than 90 days after the end of service or on next business day after that
43
USERRA reemployment reporting times after disability incurred or aggravated due to service
The normal application or reporting deadline is extended for up to 2 years
44
Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc.
USERRA requires employers to prove that a TEA would have occurred regardless of the employee's military status. The burden of proof is on employers to show that they would take an adverse action against an employee regardless of his or her military status.
45
due process
Employment actions are taken in accordance with established procedures, including notifying employees of pending actions and providing the opportunity to respond to any allegations prior to making a final adverse employment decision.
46
duty of diligence
requires an employee to act with reasonable care and skill in the course of performing work for the employer.
47
duty of obedience
requires employees to act within authority granted by the employer and to follow the employer's reasonable and legal policies, procedures, and rules
48
duty of loyalty
requires the employees act in the best interest of the employer and not solicit work away from the employer to benefit themselves
49
organizational climate
Describes how people feel about an organization based on observable practices and employee perceptions. Climate is influenced by org structure and management style.
50
organizational culture
The values and beliefs shared at all levels and reflected by interactions between employees in the org as well as customers and vendors. Includes the workplace atmosphere and the way newcomers are integrated.
51
skip-level interview
Employees are interviewed by their manager's manager to get insight into employee goals and job satisfaction, as well as offer career counseling.
52
diversity
True diversity programs recognize the different levels of knowledge, talent, perspectives, problem-solving skills, and customer-service techniques that naturally exist in a diverse workplace. Mentoring, peer-recognition, brainstorming groups and employee committees are all examples of programs that can help improve an org's cultural inclusiveness.
53
policies
broad guidelines developed by the employer to guide organizational decisions
54
procedures
provide further explanation and more detail on ho a policy is to be applied
55
work rules
state what employees my or may not do to comply with a policy
56
Pharakhone v. Nissan North America
Nissan fired Pharakhone for managing his wife's restaurant while he was on FMLA from Nissan for the birth of his wife's child. Per the courts, if a uniformly applied policy governing outside or supplemental employment (a rule against working on FMLA leave in the employee handbook) results in the employee's discharge, the employer need not reinstate the employee. Established that employees who violate company rules while on FMLA leave may be terminated.
57
discipline
Performance management tool that is designed to modify employee behavior through use of negative consequences. A good discipline policy doesn't necessarily tie an employer to specific steps, but rather makes a statement about the employee's responsibilities and consequences for failing to execute those responsibilities in accordance with company guidelines.
58
Weingarten Rights
Employees are entitled to have a union representative present at any investigatory interview that the employee believes could result in disciplinary action. Employers aren't required to inform employers of the right, but if an employee requests that a co-worker be present the employer has three options:
- discontinue the interview until the coworker arrives
- make disciplinary decisions based on other facts without the interview
- give the employee the choice of voluntarily waiving Weingarten rights and continuing the interview
Currently only applies to union employees but has applied to nonunion employees in the past so best to play it safe!
59
wrongful termination
Occurs when an employer terminates someone for a reason that is prohibited by statute or breaches a contract. An employee may not be terminated because they are a member of a protected class. If an employer gives a different reason for the termination, but the employee can prove the real reason was based on a discriminatory act the termination would still be wrongful. Employees may not be terminated as retaliation for worker's comp or for whistle-blowing activity.
60
Jespersen v Harrrah's Operating Co.
Different dress policies for men and women (wearing skirts, wearing makeup, wearing ties) are not discriminatory, as long as there are similar burdens for males and females and that the differences in requirements place similar burdens on both genders. Established that a dress code requiring women to wear makeup doesn't constitute an unlawful sex discrimination under Title VII.
61
alternative dispute resolution (ADR)
range of methods used to solve disagreements without litigation. Includes mediation, arbitration, peer review panel, ombudsman.
62
peer-review panel
consists of management and nonmanagement employees who are trained in company policies, procedures and rules. The panel hears disputes and makes decisions that can be final and binding on both parties.
63
ombudsman
mediator - impartial person not involved in the dispute who speaks with both parties and suggests alternative solutions
64
voluntary arbitration
both parties to a disagreement agree to submit to conflict to an arbitrator for resolution
65
compulsory arbitration
Can be a contract requirement or may be mandated by a court system as a means of reducing backlog of civil suits or by legal statute, as with public employee unions, which are prohibited from striking If arbitration is part of an employment contract, it's important to have such agreements reviewed by legal counsel.
66
binding arbitration
parties agree to accept the arbitrator's decision as final
67
nonbinding arbitration
either party may reject the decision and continue the dispute by filing a lawsuit
68
ad hoc arbitrator
selected to hear only a single case
69
permanent arbitrator
one who both parties can agree is fair and impartial to resolve any disputes arising between them
70
tripartite arbitration panel
consists of three arbitrators who hear the issues and reach a joint decision in the matter
71
arbitration proceeding
Each party makes an opening statement describing its case. Then the parties present evidence, in the form of documents or witnesses, to support their case. The arbitrator asks questions of both sides to obtain additional info, and then each side makes a closing statement. The arbitrator weighs the evidence and makes a decision.
72
mediation
Both parties work together with the aid of a mediator to devise a solution for a problem. The decisions of a mediator aren't binding and if the process fails, the parties may continue to the arbitration process. Mediation is an informal undertaking without evidentiary rules.
73
Davis v. O'Melveny & Myers
Established that arbitration clauses in employment agreements won't be enforced i they're significantly favorable to the employer and the employee doesn't have a meaningful opportunity to reject the agreement.
74
constructive confrontation
Begins with identifying the fundamental issue causing the conflict, the stakeholders, and their positions about the issue. The process then looks at how other conflicts arise as a result of the fundamental disagreement and how interactions between parties, including their beliefs about the problem and how to handle it, limit their ability to resolve conflict. The goal of constructive confrontation isn't necessarily to have the parties agree but to find a way to work together.
75
Sherman Antitrust Act
Sherman Antitrust Act allowed injunctions to be issued against any person or group that conspired to restrain trade. It was first used to obtain an injunction against the American Railway Union in 1894 to end its strike against the Pullman Palace Car Company.
76
Clayton Act
1914 - limited the use of injunctions to break strikes and exempted unions from the Sherman Act
77
Railway Labor Act
1926 - Avoid interruptions in travel due to strikes, protect the rights of employees to join a union, and allow for a "cooling-off" period of up to 90 days if the president deemed a strike to be a national emergency. Originally just intended to cover rail lines but applies to airlines today as well.
78
Norris-La Guardia Act
1932 - Protected the rights of workers to organize and strike without the interference of federal injunctions. Outlawed yellow dog contracts.
79
yellow dog contract
Required employees to sign an agreement saying they weren't a member of a union, they wouldn't become a member in the future, and becoming a union member would be grounds for dismissal. Now illegal.
80
National Labor Relations Act
aka Wagner Act or labor's bill of rights
Allowed employees to organize, bargain collectively, and engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection - applies to both union and nonunion employees. Created the NLRB.
81
Taft-Hartley Act or Labor Management Relations Act (LMRA)
1947. Prohibits closed shops and allows union shops only with consent of a majority of employees. States have the right to outlaw union shops by passing "right to work" laws. Replacement workers can permanently replace striking workers. Also the president can obtain an injunction ending a strike if the strike could imperil the national health or safety.
82
Labor-Management Reporting and Disclosure Act (LMRDA) or Landrum-Griffith Act
1959. Required equal rights for union members, granted free speech and assembly for union members, and restricted increases in dues and assessments. Employees also had the right to sue the union. Union leaders must be elected every 3-5 years.
83
lawful strike
strikes to protest unfair labor practices or economic strikes
84
economic strike
Union stops working in an effort to obtain better pay, hours, or working conditions from the employer. Employers may hire permanent replacements for striking workers and aren't required to rehire the strikers if doing so means the replacement workers would be fired. If employees make an unconditional request to return to work, they may be recalled at a later time when openings occur.
85
strike against employer committing unfair labor practice
Employees strike in protest. Strikers may not be discharged or permanently replaced.
86
unlawful strikes
- in support of union unfair labor practices
- violate a no-strike clause in a contract
- strikers engage in serious misconduct
87
National Labor Relations Board (NLRB)
Government agency established by the National
Labor Relations Act (NLRA) to enforce its provisions. It is charged with conducting
elections and preventing and remedying unfair labor practices. The NLRB does not instigate
actions on its own; it merely responds to charges of unfair labor practices or petitions
for representation elections filed in one of its offices.
88
unfair labor practices (ULP)
An action by an employer or a union that restrains or coerces employees from exercising their rights to bargain collectively. There are ULPs for both employers and unions.
89
employer ULPs
TIPS: employers can't threaten, interrogate promise, or spy
- interfere with, restrain, or coerce unionization efforts
- dominate or assist a labor organization (don't allow employees independent representation)
- discriminate against those participating in union activities
- discriminate against NLRB activities
- refuse to bargain in good faith
- enter into a hot-cargo agreement
90
hot-cargo agreement
at the union's request, an employer stops doing business with another employer.
91
union ULPs
- restrain or coerce employees - an employee has the right to choose whether to join a union or not.
- restrain or coerce employers - cannot refuse to bargain
- require employers to discriminate (only hire union workers)
- refuse to bargain in good faith
- engage in prohibited strikes or boycotts
- charge excessive or discriminatory membership fees
- featherbedding
- organizational and recognitional picketing in certain circumstances
92
featherbedding
Unions may not require employers to pay for services that aren't rendered. For example, unions ma not require employers to continue to pay employees to do jobs that have been rendered obsolete by changes in technology.
93
organizational and recognitional picketing
picketing is unlawful when:
- when another union is lawfully recognized as the bargaining representative for the org
- when a representative election has been held in the previous 12 months
- when a representation petition isn't filed within 30 days of the start of the picketing
94
steps for filing an unfair labor practice charge
1. charges can be filed by an employee, employer, or a union rep on a form available from NLRB.
2. charges must be filed within 6 months of the ULP
3. NLRB notifies the charged party to submit a written statement of facts
4. NLRB agent conducts interviews with ll parties and witnesses and makes a recommendation
5. complaint may result in a settlement agreement at this point
6. an administrative law judge conducts a hearing on the evidence reviews the record and issues a judgement for cases that aren't settled.
7. parties can appeal within 28 days to the national NLRB office which will issue a final order
8. appeals can be made to the US Court of Appeals.
95
authorization cards
Means by which the NLRB determines there is sufficient support for a union to hold an election. NLRB will hold n election if 30% of eligible employees in the anticipated bargaining unit sign the authorization cards. In practice, the union would like to have far more signed cards before submitting a petition for election (usually half of eligible employees)
96
demand for union recognition from employer
Happens after having sufficient authorization cards. Union submits a letter to the employer in which it claims to represent a majority of workers and demands to be recognized by the employer as the exclusive bargaining agent for employees. May also be made in person by a union representative to a member of management.
97
neutrality agreement
employer agrees not to do or say anything in opposition to the union
98
card-check election
means that employer agrees to recognize the union based on signed authorization cards. any acceptance or counting of authorization cards can be seen as management voluntarily witnessing majority status and accepting the union.
99
petitioning the NLRB for union recognition
If management refuses to grant voluntary recognition, the union files a petition for an election with the NLRB, along with evidence of employee interest in union representation. The NLRB reviews the petition to determine that it represents an appropriate level of interest in union representation and that signatures on the petition or authorization cards are valid.
100
bargaining unit
The union wants the unit to be as large as possible and include a majority of employees who are in favor of the union. Management wants to limit the size of the unit and include a majority of employees who choose to remain union-free. NLRA says that the unit should be the employer unit, craft unit, plant unit, or subdivision thereof. It cannot consist of both professional and nonprofessional employees unless professional employees vote to be included. Individuals hired as guards to protect the employers premises may not be included in a unit with other employees. There must be a community of interest - members must have similar interests.
101
Who can't be included in a union?
Confidential employees, supervisors, management, independent contractors and agricultural laborers. Temp workers not part of a multi-employer unit can be included.
102
salting
Occurs when a union hires a person to apply for a job at an org they have targeted. Once hired, the employee acts in much the same way as an inside organizer who was already employed by the company.
103
picketing
Occurs when a grop of employees patrols the enrance to a business in order to inform customers and the public about disputes or to prevent deliveries to a business that the union is trying to influence in some way. It can also occur to advise the public about ULPs the union believes the employer has committed.
104
organizational picketing
Occurs when the union wants to attract employees to become members and authorize the union to represent them with the employer.
105
recognitional picketing
Occurs when the union wants the employer to recognize the union as the employees' representative for collective-bargaining purposes. The NLRA places a limit of 30 days on recognitional picketing, after which a petition for election must be filed.
106
informational or publicity picketing
done to truthfully advise the public that an employer is an union free workplace
107
Excelsior list
employer must provide a list containing the names and addresses of all employes in the bargaining unit to the unit within 7 days of agreeing to elections to the union
108
consent election
Union and employer agree to waive preelection hearing.
109
directed election
NLRB holds conference between parties. If issues are not resolved, NLB must hold a preelection hearing to resolve issues, then schedules the election.
110
union election process
To be eligible to vote, an employee must have worked a day in the pay period prior to the election and must be employed by the business on the day of the election. Employees who are sick, on vacation, on military leave, or on temporary lay off may voe subject to NLRA rules. Strikers who have been replaced by bona fide permanent employees may vote in any election that takes place within 12 months of the beginning of the strike. The NLRB counts the vote and provides the count to the parties at the same time. If the union receives 50% + 1 vote, the union is certified.
111
contract bar
NLRB won't direct an election while a bargaining unit is covered by a valid collective bargaining agreement
112
statutory bar
the NLRA prohibits an election in a bargaining unit that had a valid election during the proceeding 12 month period
113
certification year bar
When the NLRB has certified a bargaining representative, an election won't be held for another year
114
blocking-charge bar
an election petition will be barred when there is a pending ULP charge
115
voluntary recognition bar
if an employer has voluntarily recognized a union as the representative for a bargaining unit an election will be barred for a reasonable period of tie to allow the parties to negotiate a contract
116
prior-petition bar
when a unit petitioning for an elecion withdraws the petition prior to the election, no elections will be approved for 6 months
117
union decertification
Employees may petition the NLRB for union decertification if they're dissatisfied with the union's performance. Requires 30% of employees signatures before NLRB will act on petition. Reasons may include: poor performance by union, employee's desire to be represented by a different union, employees no longer want to be represented by a union. Employers may not encourage or support employees in the decertification process.
118
union deauthorization
Employees may want to maintain the union but remove a union security clause, such as union shop, dues check off, or maintenance of membership clause. NLRB will approve deauthorizaion based on a petition by 30% or more of the members in the bargaining unit. As with decertification, the employer may not participate or risk a ULP.
119
collective bargaining
The NLRA imposes a duty to bargain on employers an unions. Mandatory subjects include wages, hours, terms and conditions of employment, the agreement itself, and any questions that arise from the agreement. Bad faith in the bargaining process can consist of lack of concessions on issues, refusing to advance proposals or to bargain, stalling tactics, or withholding info. Bad faith by management can include circumventing the union and going directly to employees, making unilateral changes to working conditions. Bad faith by both parties would include failing to notify intent to renegotiate the contract 60 days before it expires.
120
positional bargaining
a strategy represented by demands made by each side. Each side views the objec of the negotiation as something finite that must be shared. In order for one to win, the other must lose.
121
principled bargaining
Looking at the problem in new ways to get out of the fixed pie mentality. Focus on interests instead of positions.
122
integrative bargaining
parties look at all issues and are able to make mutually agreeable trade-offs between those issues.
123
interest-based bargaining (IBB)
based on the concept that both sides in a negotiation have harmonious interests.
124
single unit bargaining
occurs when one union meets with one employer to bargain
125
parallel bargaining or pattern bargaining or whipsawing or leapfrogging
union negotiates with one employer at a time. after a contract has been reached with one employer, the union uses the gains made during the negotiation as a basis for negotiating with the next employer.
126
multi-employer bargaining
union negotiates with more than one employer in an industry or region at a time. can occur when temporary workers are part of a client employer's bargaining unit and the union negotiates with both the temp agency and the client employer on employment issues.
127
multi-unit bargaining or coordinated bargaining
occurs when several units represent different bargaining units in the company. an example of this occurs in the airline industry, when the employer negotiates with the unions representing pilots, flight attendants, and mechanics. This allows the employer to coordinate negotiations on mandatory and permissive bargaining subjects while allowing the unions to cooperate on issues that have similar meaning to their various members.
128
mandatory collective bargaining subjects
wages, hours, other terms and conditions of employment, and the negotiation of the agreement and bargaining related to questions that arise from the agreement. unresolved issues on these subjects are the only ones that may be the subject of a strike or lockout.
129
illegal collective bargaining subjects
hot cargo clauses and closed shop security agreements
130
voluntary collective bargaining subjects
those that aren't mandatory or illegal; may include management rights, production scheduling, operations, selecting supervisors
131
reserved-rights doctrine
management generally includes a clause in a collective bargaining agreement that states that any rights not covered specifically by the agreement are the sole responsibility of management
132
collective bargaining agreement (CBA)
contract governing the employment relationship for a specified period of time. may include the following clauses:
- wage, hours, terms, and conditions of employment
- union security clauses - helps ensure the union will be able to carry out its bargaining obligations
- no strike/no lockout clauses - provide protection from work stopages
- contract administration
- dues check off
- zipper clause
133
union shop clause
requires all employees join the union within a grace period specified in the contract (usually 30 days)
134
agency shop clause
specifies that all employees must either join the union or pay union dues if they choose not to join the union
135
closed shop clause
requires that all new hires be members of the union before they're hired. illegal in all industries except construction.
136
maintenance of membership clause
allows employees to choose whether to join the union, but once they join, they must remain members until the contract expires. employees must notify the union that they wish to discontinue membership within 30 days of the contract expiration.
137
zipper clause or totality of agreement clause
agreement between parties that the CBA is the entire agreement between them and that anything not in the agreement isn't part of the agreement.
138
successor employer
When a company is acquired, the NLRB ay require them to maintain the union contract based on the following:
- they substantially continue operations
- the employees are largely assimilated into the new company
- products and operations are largely similar
- there was an agreement with the previous employer to do so
139
lockout
Management shuts down operations to keep the union from working. This may happen if union members are engaging in a work slowdown.
140
boycotts
Occur when the union and the employees work together against an employer to make their dissatisfaction with the employer's actions known or to try to force the employer into recognizing the union or to conceding to the demands of the union.
141
ally doctrine
Type of boycott. States that when an employer whose workers are on strike contacts a neutral employer and asks the neutral employer to produce the work that would normally be performed by the striking workers, the neutral employer becomes an ally of the struck employer and is therefore a legitimate target of a picket line.
142
alter ego doctrine
Type of boycott. An alter ego employer consists of two or more businesses with substantially identical management, purposes, operations, equipment, customers, supervision, and ownership. When these criteria are present, the NLRB may determine that employees of the alter ego employer are part of the bargaining unit.
143
double breasting
Type of boycott. Refers to a common owner of two businesses, one of which is a union shop and the other is a nonunion shop. Unions would like both business to be a bargaining unit because of the common ownership. The NLRB has determined that unionization of both businesses may be a legitimate topic for contract negotiation, and if the owner refuses to bargain, the union may strike.
144
secondary boycott
Occurs when a union tries to compel an employer who isn't involved in a dispute (such as a supplier) to stop doing business with another employer that is part of a dispute with the union. This is a ULP.
145
straight-line operations
One in which two businesses perform operations that complement each others operations. If one business strikes, the other is basically struck as well because they're in a single economic enterprise.
146
strike
Occurs when the union decides to stop working. Strikers who engage in serious misconduct during a strike, including violence or threats of violence, will cause a strike to be deemed unlawful. Work slowdowns are considered unlawful strikes and may result in disciplinary action.
147
wildcat strike
occurs in violation of a contract clause prohibiting a strike during the contract term
148
sit down strike
employees quit working and stay in the building; considered unlawful
149
picketing
occurs to inform parties about issues under dispute; strikes mean simply stop working. can occur at the same time but don't have to. can picket after work hours or strike without picketing.
150
common situs picketing
Happens when an employer shares a building with other employers. Because picketing a common business location can interfere with the ability of secondary businesses to operate, the union must ensure that picket signs clearly state the name of the business they're striking and, where possible, restrict picketing to an entrance only used by the primary employer.
151
consumer picketing
done to advise consumers that goods have been produced by a business whose workers are on strike
152
What is the largest union?
National Eduction Association (NEA)
