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A union (or more specifically a “labor union”) is an association of workers that is recognized by law and that “bargains” with an employer for the rights and working conditions of employees the union represents.
Unions must be recognized by an employer once they have been certified by the National Labor Relations Board (NLRB). The NLRB is an independent federal agency created in 1935 by Congress to administer the National Labor Relations Act (NLRA), the basic law governing relations between labor unions and employers.
How unions are formed
Generally, unions are recognized through a secret-ballot election. Congress has empowered the NLRB to conduct these elections so employees may exercise a free choice whether a union should represent them for bargaining purposes. A secret-ballot election will be conducted only when a petition requesting an election is filed and where at least 30 percent of eligible employees in an appropriate bargaining unit have signed authorization cards indicating they want union representation.
Before the election is conducted, there is usually a lot of activity, both from the employer and the labor organization, trying to present their side to workers who are deciding whether to vote for union representation.
Common methods labor organizations use to gain support are:
- Offsite meetings.
- Distribution of pamphlets.
- Placing of “Salts” (individuals who actually get hired into the workplace but whose primary purpose is to convince workers to organize).
- Internet campaigns (websites, emails, chat rooms).
Employers often utilize similar methods to present their message. These include:
- On-site meetings.
- Letters to the employees.
- One on one sessions with supervisors.
What employers may legally do is complicated so a qualified professional or labor lawyer should be consulted.
Unions consist of bargaining units
Unions are made up of bargaining units, which are groups of two or more employees who share a community of interest and may reasonably be grouped together for purposes of collective bargaining. The determination of what is an appropriate unit for such purposes is left to the discretion of the NLRB.
Who can or cannot be included in a bargaining unit?
A bargaining unit may cover the employees in all or a portion of one plant of an employer, or it may cover employees in two or more plants of the same employer. In some industries in which employers are grouped together in voluntary associations, a unit may include employees of two or more employers in any number of locations.
It should be noted that a bargaining unit can include only persons who are “employees” within the meaning of the Act. The Act excludes certain individuals, such as agricultural laborers, independent contractors, supervisors, and persons in managerial positions, from the meaning of “employees.” None of these individuals can be included in a bargaining unit established by the NLRB. In addition, the NLRB, as a matter of policy, excludes from bargaining units employees who act in a confidential capacity to an employer’s labor relations officials.
Who must pay dues?
One of the first issues that arises once a union is recognized is the payment of dues. The NLRA permits, under certain conditions, a union and an employer to make an agreement, called a union-security agreement, which requires employees to make certain payments to the union in order to retain their jobs. A union-security agreement cannot require that applicants for employment be members of the union in order to be hired, and such an agreement cannot require employees to join or maintain membership in the union in order to retain their jobs. In some states (“right to work” states), union security agreements are illegal.
Under a union-security agreement, individuals may be required to pay full initiation fees and dues within a certain period of time (a “grace period”) after the collective-bargaining contract takes effect or after a new employee is hired. However, the most that can be required of employees who inform the union that they object to the use of their payments for nonrepresentational purposes is that they pay their share of the union’s costs relating to representational activities (such as collective bargaining, contract administration, and grievance adjustment).
Collective bargaining
The cornerstone of labor relations is collective bargaining. Collective bargaining is the method whereby unions and employers determine the conditions of employment through direct negotiation. This process often results in a collective bargaining agreement setting forth the wages, hours, and other conditions of employment for a stipulated period (e.g., three years).
These obligations are imposed equally on the employer and the representative of its employees. It is an unfair labor practice for either party to refuse to bargain collectively with the other. The obligation does not, however, compel either party to agree to a proposal by the other, nor does it require either party to make a concession to the other.
The NLRA provides further that upon the expiration of a collective-bargaining agreement, no party to the contract can end or change matters covered by the contract unless the party wishing to end or change it takes specific steps outlined in the NLRA.
Required subjects of bargaining
The duty to bargain covers all matters concerning rates of pay, wages, hours of employment, or certain other conditions of employment. These are called “mandatory” subjects of bargaining about which the employer, as well as the employees’ representative, must bargain in good faith, although the law does not require either party to agree to a proposal or require the making of a concession.
In addition to wages and hours of work, these mandatory subjects of bargaining include but are not limited to such matters as:
- Pensions for present employees
- Bonuses
- Group insurance
- Grievance procedures
- Safety practices
- Seniority
- Procedures for discharge, layoff, recall, or discipline
- Union security, unless prohibited by law in a right to work state
Certain managerial decisions such as subcontracting, relocation, and other operational changes not covered by an existing contract may not need to be bargained, even though they affect employees’ job security and working conditions. The issue of whether these decisions require bargaining depends on the employer’s reasons for taking action. Often, this issue is a complicated one and professional advice should be sought.
Even if the employer is not required to bargain about the decision itself, it must normally bargain about the decision’s effects on employees. On “nonmandatory” subjects, that is, matters that are lawful but not related to “wages, hours, and other conditions of employment,” the parties are free to bargain and to agree, but neither party may insist on bargaining on such subjects over the objection of the other party.
Unions’ impact on HR
When human resources is performed in a union setting, there are certain restrictions that must be observed. For instance, the employer has to be sure not to commit any unfair labor practices (ULPs). Employers may not interfere in union matters; may not restrain, coerce, intimidate, or threaten union members for protected activity; may not dominate or support a specific union; may not discriminate against employees for participating in union activities; may not retaliate against an employee for exercising their union rights; and may not refuse to bargain mandatory subjects of bargaining with an NLRB-certified union.
Something as seemingly harmless as an employee participation committee may constitute an unfair labor practice if the group discusses wages hours, benefits, or working conditions with management.
Perhaps the biggest restriction from a human resources standpoint is in making changes. Any desired changes that are to be made in the areas of benefits, wages, or any other mandatory subject of bargaining must be negotiated with all affected unions, unless an agreement permits the company to make changes. This may limit a company’s flexibility to make sweeping changes company-wide, although it can be done over time.
When imposing discipline in a union environment, employers must take the collective bargaining agreement (CBA) into consideration. The CBA usually spells out procedures for progressive discipline and will normally state that an employer may discipline or terminate an employee only “for cause.” This is a departure from employment-at-will, where an employer may fire someone for any reason (as long as it is not discriminatory or counter to any federal or state legal protection).
Human resources must also be aware of union members’ right to strike if agreement is not reached. While a strike is a method of last resort for the union, employers must be prepared for such an eventuality. They must consider how to continue operations should a strike occur. Normally, a CBA will prohibit a strike during the term of the agreement.
Grievances are filed by union members when they feel they have been wronged by their employer. They must be able to cite a specific provision of the CBA as the basis for their grievance. Typically there is a prescribed set of procedures outlined in the CBA for an employee to file a grievance. It generally begins at the lowest level of management (a verbal discussion with their immediate supervisor) and progresses upward through management ranks (and through union ranks as well) in the form of a written document. If the union and the employer can not come to an agreement regarding the grievance, it often may go to arbitration.
In arbitration, a neutral third party hears both sides and decides the outcome of the grievance.
When HR deals with union matters, it is essential to have a good understanding of the labor agreement and also to be familiar with past practices. These practices are often used by an arbitrator in interpreting a CBA.