Chapter VI
Collective Bargaining
History has shown that organization has been an effective way for working people to change their social and economic status and to protect their interests. The story of workers' efforts to form labor organizations is long and filled with struggles. At one point labor organizations were regarded as criminal conspiracies. Today they are recognized as legal organizations, the formation of which was - and continues to be - expressly encouraged by both national and state policy.
What led to the passage of labor laws?
The development of labor law was somewhat sporadic until the first part of the twentieth century. Early on, the development of labor law was driven, primarily, by court decisions. The collective efforts of workers were frequently regarded by courts as criminal conspiracies. This view continued until the latter part of the 19th century, but even after it had changed it did not mean that unions would no longer face formidable legal obstacles. Laws such as the Sherman Anti-Trust Act of 1890, for example, intended to outlaw conspiracies among corporate competitors, were interpreted by the courts to outlaw union activities such as boycotts. See, Loewe v. Lawlor , 208 U.S. 274 (1908) ( The Danbury Hatters Case )
Despite efforts by Congress to remedy the situation (i.e., The Clayton Act of 1914 was one such effort, though an ineffective one) relief for workers did not really arrive until the mid-1920's with the passage in 1926 of the Railway Labor Act. That Act prohibited railroads companies from interfering with the right of railroad workers to organize and bargain collectively. Six years later, the Norris-LaGuardia Act declared a public policy extending to workers the "full freedom of association, self-organization, and designation of representatives of [their] own choosing" to negotiate terms of employment.
However, the single most important development in labor law came three years after Norris-LaGuardia : The National Labor Relations Act of 1935 (the Wagner Act ).
What is the National Labor Relations Act ?
The National Labor Relations Act , passed in 1935, is the labor law of the land. It established employee rights and unfair labor practices by employers. It also established procedures through which employees can choose their own representatives.
Often referred to as the Wagner Act (after the senator who sponsored the legislation), the NLRA expressly sought to contain the industrial strife that gripped the United States during the Great Depression by "encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection."
What is the Labor Management Relations Act ?
The Labor Management Relations Act ( LMRA ) refers to the NLRA , as amended by the Taft-Hartley Act . The Taft-Hartley Act amended the NLRA in 1947 by establishing several union unfair labor practices, as well as certain other changes.
What is the Landrum-Griffin Act ?
The Landrum-Griffin Act amended the LMRA in 1959 and primarily deals with the internal practices and procedures within unions. After Landrum-Griffin , the LMRA was renamed the Labor Management Relations Act, 1947, as amended .
It is not uncommon, however, to hear people speak of component parts of the Act. As noted above, the original NLRA is still referred to frequently as the Wagner Act . Similarly, the specific changes made in 1947 are often referred to collectively as Taft-Hartley .
Throughout this chapter, unless stated otherwise, the term NLRA (or, the Act) is used and includes along with the original Act, all amendments.
How is the NLRA administered and enforced?
The National Labor Relations Board (NLRB) is responsible for administering and enforcing the NLRA . The Board has the following responsibilities:
• Determining whether employees have decided to have union representation through secret ballot elections; and,
• Preventing and remedying unfair labor practices.
What is the extent of the Act's coverage and the Board's jurisdiction?
In terms of coverage, the Act speaks in the broadest terms and refers to employers whose operations affect commerce . However, before the Board will assert jurisdiction, the employer must meet the monetary threshold established by the National Labor Relations Board. These thresholds vary from industry to industry. Also, there are certain employers and employees that the Act excludes from coverage.
Excluded from coverage are:
• employees of the United States (except employees of the U.S. Postal Service)
• employees of any wholly owned government corporation
• employees of any Federal Reserve Bank
• state and municipal employees
• employees subject to the Railway Labor Act
• agricultural employees
• domestic servants
• persons employed by a parent or spouse
• independent contractors
• supervisors
• confidential employees
• management employees
Federal employees are covered by the Federal Service Labor-Management Relations Act . Rhode Island's public employees are covered by several different laws, listed toward the end of this chapter.
How is the NLRB structured and organized?
The NLRB is composed of interrelated parts: The National Labor Relations Board and the General Counsel. Their respective roles, as they interrelate, have been compared to a judge and a prosecutor.
The Board, composed of five members serving staggered terms, acts as a "quasi-judicial body" which decides cases on the basis of formal records in administrative proceedings. The President appoints board members with approval by vote of the Senate, except for the Board Chair who is selected by the President and confirmed by the Senate. The General Counsel is independent from the Board and is charged with investigating and prosecuting unfair labor practices. The General Counsel also oversees the regional field offices, each of which has a Regional Director. Regional Directors make the initial determinations in unfair labor practice and representation cases. Currently there are 34 regional offices. Rhode Island is in Region One.
What are the basic rights of employees under the Act?
The basic rights of employees are spelled out in Section 7 of the Act:
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in [the Act]."
The Act officially recognizes that under modern economic conditions "an individual unorganized worker is commonly helpless to exercise actual liberty," so that a worker must be free to organize collectively. As a declared national policy, the NLRA encourages collective bargaining, defines the rights of employees and employers in this process, and seeks "to eliminate certain practices on the part of labor and management that are harmful to the general welfare."
Does the Act apply only to unionized employees?
No. The express language of the Act does not limit the exercise of the enumerated rights to union members only. It speaks to employees engaged in "concerted activity." But since the Act is interpreted by the National Labor Relations Board, whose members tend to reflect the political views of the appointing authority, the inclusiveness of the Act will vary.
Some recent decisions suggest that the current Board is taking a broader view of the Act's application.
In New York University , 2-RC-22082; 332 NLRB No. 111, New York, NY Oct. 31, 2000, the Board held that graduate assistants at private universities are employees under the National Labor Relations Act and entitled to organize and bargain with their employer even though they are enrolled as students.
While these and other decisions make it clear that even nonunionized employees have rights under the NLRA , it does not mean that an employer will not illegally retaliate. Many of these cases arise simply because an employer has retaliated when employees exercise their rights under the Act.
Finally, the Act even extends to people who are not yet - or who actually may never be - employees of a particular company, since, under the Act, it is unlawful for an employer to refuse to hire an individual because that individual is a union supporter.
If there is no labor organization can one be started?
Yes. Workers in nearly every place of employment are free to join an existing organization or start their own. Workers might affiliate with an international union or start their own organization in a single work site. Labor organizations must be free, independent, and worker controlled. "Company unions" - that is, company controlled employee organizations that give a deceptive appearance of independence - are currently illegal.
Can an employer oppose the unionization of employees?
Employers may be personally opposed to the unionization of company employees, and can even articulate their opposition, but their actions in opposition to organizing employees are restricted by the law. Violations of the restrictions indicated in the NLRA are termed unfair labor practices .
Section 8(a) of the Act identifies the unfair labor practices of employers and Section 8(b) identifies the unfair labor practices of unions. The prohibitions are written in somewhat broad terms and have been further defined by decisions of the National Labor Relations Board and the courts.
What are the unfair labor practices of employers?
As set out in Section 8(a), it is an unfair labor practice for employers:
• "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" 8(a)(1);
• "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it" 8(a)(2);
• "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in a union" 8(a)(3);
• "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under [the] Act" 8(a)(4);
• "to refuse to bargain collectively with [employee] representatives." 8(a)(5).
Decisions by both the NLRB and the courts serve to illustrate these rights. For instance, unfair labor practices have been found where an employer:
• told employees that by unionizing they may have fewer rights and benefits,
• gave employees the impression that their union activities are being watched,
• told employees that the company will not bargain with the union,
• closed part of the business in order to "chill" unionization efforts,
• refused to reinstate employees in open jobs because they took part in a lawful strike
• harassed union activists, and
• provided unscheduled and unanticipated wage increases to workers being organized by a union in an attempt to discourage unionization.
The line between lawful and unlawful conduct is, at times, very fine. While it is unlawful to interrogate workers about union sympathies, it may be lawful, under certain conditions, to poll workers. Threats of reprisal in an employer's anti-union speech to employees will make an otherwise lawful expression of opinion, unlawful.
What are the restrictions that may be placed on the distribution of literature and the solicitation of employees during organizing efforts?
Generally, workers have the right to talk about organizing and to pass out union membership cards anywhere in the workplace as long as it does not disrupt production. Handing out union literature is protected activity as long as it is done on a worker's own time (i.e., lunch hour, coffee break, etc.) and in non-work areas (i.e., cafeteria, locker rooms, or parking lot).
However, the rules for nonemployee union organizers are different. An employer may ban nonemployee organizers from distributing literature or soliciting company employees on company property, but only if it is possible for the union to reach the employees with reasonable efforts through other channels and the employer's rule is applied to all other non-union distributions and solicitations (such as charities). See NLRB v. Babcock and Wilcox Co. , 76 S.Ct. 679 (1956); American Postal Workers v. NLRB , - F.3 rd - (6/4/2004)
Can the union communicate to members through the company bulletin board or email system?
It depends. If the company permits the bulletin board or email system to be used for other non-business uses, it cannot discriminate against the union seeking to use the same means to communicate to its members. See E.I. du Pont & Co. , 311 NLRB 893 (1993).
How does a labor organization come to represent workers?
The National Labor Relations Act sets up a straightforward procedure for organizing. The first step is to demonstrate that a labor organization has support. This is accomplished with authorization cards (also known as cards of intention ). Workers who want to join the union sign the cards, which may be presented to the National Labor Relations Board as evidence of the workers' desire to join a labor organization. However, if the employer believes that many of the employees desire to join the union, the employer may voluntarily agree to bargain collectively with the organization.
Employers often do not voluntarily accept the signed cards as proof of union interest and there are many legal tactics available to employers to delay recognition of the union. When an employer refuses to voluntarily recognize the labor organization, the labor organization, any employee, or the employer may file a representation petition requesting an election with the regional office of the National Labor Relations Board. The Board determines if there is sufficient interest among the workers for forming a union. Sufficient interest is demonstrated if at least 30 percent of the work force has signed authorization cards. If so, the Board will determine the potential bargaining unit and set the date for an election.
Determining who should be in the bargaining unit is often a complicated and time-consuming process. The basic test is that all unit members have a community of interest in terms of job responsibilities, wage rates, benefits, and other common aspects of work. People excluded from bargaining units pursuant to the Act are those persons identified with management's interests.
Must an employer provide the union with information about employees during organizing efforts?
If a union election is to be held, employers may be required to provide the union with the names and addresses of workers who may be eligible to form the union. This is referred to as the Excelsior List . In addition, professional organizers may have a right to enter the workplace if it is open to other members of the public.
How is an election held?
The National Labor Relations Board works to ensure a fair election. There are many rules surrounding an election and if an employer or union violates these rules, it may result in an unfair labor practice charge or invalidate the election. In some cases of serious employer misconduct, the Board may order an employer to recognize the union without holding an election. According to the NLRB Regional (Boston, MA) Director:
"If the Board determines that objectionable conduct has been committed, it will order a rerun election. If a union has obtained proper authorization cards from a majority of employees in the bargaining unit and the employer subsequently commits serious unfair labor practices precluding a fair election, the Board may require the employer to recognize the union without holding an election."
The election is held by secret ballot and gives workers a choice between one or more unions, and no union. If no choice receives a majority of the votes, a run-off election may be held.
What happens after the election?
Votes are counted. Each party to the election may appoint observers at the poll, assist in counting ballots, or otherwise help the Board's agent. If over 50 percent of the employees voting chooses to join a particular union, the organization is certified and the employer is required to bargain with the organization.
Can there be another election if "no union" wins?
Yes, but not before a minimum of twelve months has elapsed since the first election. However, in cases where the National Labor Relations Board finds that the employer engaged in objectionable conduct, a rerun election may be ordered without the waiting period.
Can there be another election if the union wins?
Yes. But once again, not before a minimum of twelve months has elapsed since the first election. At that point a decertification election can be held or another union can seek to represent the workers. Any worker or employee group can request it, but it is illegal for an employer to sponsor any action encouraging a union's decertification.
The methods for initiating and conducting an election to change the union, or to return to no representation, are the same as the original election. If the employees vote against the labor organization, it is decertified. However, if the union and employer have negotiated a contract within twelve months from when the union was certified, then no election can be held until after the expiration of that contract, or three years, whichever comes first.
Does the employer have to bargain with the union?
Yes, both parties are obligated to bargain in good faith. But recognition of a union - either through the election and certification process, or through voluntarily recognition by the employer - signifies more: The union is the exclusive representative of the employees. This means that the employer cannot bargain with any other entity or individual that purports to act on behalf of the organized employees.
The employer is under a duty to meet with the union representing a majority of the employees and bargain in good faith . The union is under a reciprocal duty. However, neither party is required to agree to a proposal made by the other or to make a concession.
Good faith suggests - and courts have held - that merely going through the motions of bargaining is insufficient. Nor can employers have a "take it or leave it" approach in negotiations. Lastly, they cannot attempt to go around the union and deal directly with the employees.
Can the employer bargain directly with the employees?
No. The status of exclusive representative enjoyed by the union means that the employer is legally prohibited from dealing directly with members of the bargaining unit as to all terms and conditions of employment. With few exceptions (such as major league baseball players whose base salary is negotiated by the player's union and who, individually, bargain any salary above that base), an employer is prohibited from engaging in individual bargaining.
As one court stated succinctly, "The collective bargaining agreement cannot be modified by a contract between the [employer] and individual employees. A contract with an individual employee, which in any manner would expand, supersede or modify the collective bargaining agreement, would not be valid nor enforceable." Trigo v. Eastern Airlines, Inc. , 440 F. Supp. 983 (1976) citing Steele v. Louisville & Nashville R.R. Co. , 323 U.S. 192 (1944); J.I. Case Co. v. Labor Board , 321 U.S. 332 (1944).
What does the law say about the subjects over which the parties seek to bargain?
The subjects over which parties bargain are widely varied and, while many subjects are common to all collective bargaining agreements, many are specific to the workplace, the industry, or the profession. In addition, federal and state laws may already address particular subjects and, thereby, limit the extent to which the parties can negotiate on an item. (For instance, both federal and state minimum wage laws would prohibit the parties from negotiating a wage below the minimum wage .)
The Act requires parties to "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." Subjects that fall within the meaning of "wages, hours, and other terms and conditions of employment" have been deemed mandatory subjects of bargaining; that is, the parties are forced to bargain over these subjects. The failure of an employer to bargain over mandatory subjects constitutes an unfair labor practice .
Mandatory subjects are contrasted with permissive subjects of bargaining and nonbargainable subjects. Permissive subjects are those subjects that can be included in a collective bargaining agreement, but are not subjects over which the parties are forced to bargain; that is, they are not mandatory subjects . Permissive subjects include:
• the scope of the bargaining unit represented by the union
• employer insistence that nonunion employees have a right to participate and vote in union meetings
• insistence by the union that the employer furnish a bond for the payment of wages and benefits
• insistence by the employer that the union furnish a bond to indemnify the employer should it be picketed by outside unions
• settlement of Unfair Labor Practice charges
• insistence upon a transcript of negotiations or the tape recording of bargaining sessions
Neither party is required to bargain about a permissive subject , which means that neither party can lawfully insist upon a permissive proposal to the point of impasse. This doesn't mean, however, that permissive subjects are so easily removed from negotiations.
The Board has recognized that there are often considerable relationships between permissive subjects and mandatory subjects within a package proposal containing both. (For instance, an employer's proposal on reinstatement of certain discharged employees and waiver of back-pay - two permissive subjects - could very likely have bearing on a wage-increase proposal - a mandatory subject . If the permissive proposal is removed from the table, the employer could lawfully alter its wage-increase proposal).
The Board has also made it clear that under such circumstances, one party cannot conclude negotiations by agreeing only to those demands of the other party which constitute mandatory subjects of bargaining. Nordstrom, Inc. and Retail Store Employees Union Local No. 1001, AFL-CIO , 229 NLRB 601 (1977)
Nonbargainable subjects are subjects on which no bargaining is permitted. They either must be included in the bargaining agreement automatically (i.e., a clause acknowledging the union as the exclusive representative of employees must be included in the agreement) or they may not be included in the agreement at all (i.e., a "hot cargo" clause: A clause in which an employer agrees not to require its employees to handle or work on products of plants employing strikebreakers or non-union workers. Such clauses were outlawed by Taft-Hartley ).
Notwithstanding the law and, as a practical matter, what the parties bargain over and the extent to which they bargain over certain issues, will depend very much on the relative strengths of the parties.
Specifically, what subjects have the courts and the NLRB deemed mandatory subjects?
Those subjects that are embraced by the terms "wages, hours, and other terms and conditions of employment" and, therefore, have been deemed mandatory subjects include:
• wages
• discipline and discharge procedures
• substance abuse policies
• work schedules
• union security and checkoff
• vacations and individual merit raises
• bonuses and profit sharing,
• grievance and arbitration procedures
• tape recording arbitration proceedings
• work rules
• group insurance plans
• no-strike clauses
• seniority provisions
• zipper clauses (In its broadest form a zipper clause is a contract clause which indicates that the parties have had the opportunity to bargain over all of the mandatory subjects of bargaining and each waives their right to bargain over any matters during the life of the contract. More narrowly, the clause can limit the waiver to only those issues discussed during negotiations.)
Does the employer have to give the union information for use during collective bargaining?
The National Labor Relations Act requires that an employer, upon request, supply the union with relevant information needed for bargaining. This means, for example, that the union can obtain:
• the costs of benefit packages proposed by the employer; and
• economic information data on wages.
A particularly significant rule is that a company claiming the financial inability to meet a union's demands may be required to prove its claim by showing its financial records to the union.
What is a collective bargaining agreement?
A collective bargaining agreement is an agreement entered into by an employer and a labor organization for the purpose of regulating certain work-related issues. The provisions of the labor contract are binding on both sides for a mutually acceptable period of time and are enforceable through the grievance and arbitration procedures, appeal to the National Labor Relations Board (or, for public employees, the Rhode Island State Labor Relations Board), and finally, through recourse to state or federal courts.
This agreement takes the form of a legal contract for several reasons. Employees need to know in advance about wages, fringe benefits, discipline proceedings, and other matters. Employers need to know the same things, plus they want protection from strikes for a certain period of time.
In the vast majority of cases both parties to the agreement comply with its contents and the law never enters the picture. In some cases serious abuses do occur, and workers may turn to the Labor Board or the courts to seek protection.
What changes in working conditions can an employer make during the term of a collective bargaining agreement?
That depends on what changes are proposed, whether the matter is contained in the collective bargaining agreement, and whether or not the union has waived the right to bargain over the subject. In certain instances the obligation imposed by the Act to bargain in good faith will be a factor.
Generally, if the terms are spelled out in the collective bargaining agreement - whether they are mandatory subjects for collective bargaining or permissive subjects for collective bargaining - the employer can neither insist on a change nor implement a change for the duration of the contract without the union's consent.
If the employer - without first having bargained with the union - makes a change in a condition of employment spelled out in the collective bargaining agreement, and the subject is a mandatory subject for collective bargaining , the employer has committed an unfair labor practice .
If the employer changes an aspect of employment contained in the collective bargaining agreement - once again, without having bargained with the union - and the subject is a permissive subject for collective bargaining , there is no unfair labor practice ; however, there may be an action for breach of contract. See, Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass Co. , 404 U.S. 157, 188 (1971).
If the change sought is not spelled out in the collective bargaining agreement, but the item is a mandatory subject for collective bargaining , the employer cannot make any changes until the employer gives the union notice of an intended change and both the employer and the union bargain to impasse, provided that the issue was among those issues discussed at the bargaining table. Only then can the changes be lawfully implemented.
If the change is not spelled out in the collective bargaining agreement and the matter concerns a permissive subject for collective bargaining , the employer, generally, has no duty to bargain. There is at least one exception to this rule: If the permissive subject at issue is the scope of the bargaining unit and the parties do not agree on a change, no unilateral change is permitted without the Board's consent.
And lastly, an employer can make changes permitted by the contract.
Why is the scope of the bargaining unit different?
The reason underlying the law's disfavor with unilateral changes in the unit description is simple: If an employer could vary unit descriptions at will, that employer would have the power to sever the link between a recognizable group of employees and its union as the collective bargaining representative of these employees. "This, in turn, would have the effect both of undermining a basic tenet of union recognition in the collective bargaining context and of greatly complicating coherence in the negotiation process." Boise Cascade Corp. v. NLRB , 860 F.2d 471 at 474-75 (1988).
Thus, continuing with the question of permissible changes by an employer: Once a specific job has been included within the scope of the bargaining unit by either Board action or consent of the parties, the employer cannot unilaterally remove or modify that position without first securing the consent of the union or the Board.
What is an impasse in negotiations?
According to the NLRB, an impasse occurs following good faith bargaining at the "point in time of negotiations when the parties are warranted in assuming that further bargaining would be futile." A.M.F. Bowling Co. , 314 NLRB 969 (1994). Whether an impasse exists is largely a factual determination. Among the factors considered is the bargaining history of the parties, the fluidity of bargaining positions, whether there is a demonstrated willingness to give issues any further consideration, and statements by the parties regarding impasse.
An inability to reach agreement on one issue, generally, does not create an impasse. Rather, it is reached when discussions on proposals as a whole become fruitless.
An impasse can end - and the duty to bargain renewed - when circumstances or conditions change, such as a change in a bargaining position by one of the parties.
What happens when an impasse occurs?
While the primary objective of the National Labor Relations Act and the corresponding state Labor Relations Act is to require labor and management to establish working conditions jointly through the process of collective bargaining, it doesn't always happen. What happens following an impasse in negotiations depends on whether the relationship is governed by the laws of the private sector or the public sector - and if governed by the laws of the public sector, which employee group.
When an impasse is reached in the private sector, the duty to bargain is not terminated, but only suspended. The impasse permits the employer to make unilateral changes in working conditions that are "not substantially different or greater than any which the employer. proposed during the negotiations." Atlas Tack Corp. , 226 NLRB 222, 227 (1976), enfd. 559 F.2d 1201 (1 st Cir. 1977).
While the impasse doctrine permits an employer to use unilateral economic pressure by establishing new terms and conditions of employment as set out in the employer's bargaining proposals, the Courts have recognized that there are limits as to what may be unilaterally imposed by an employer after an impasse has been reached. Subjects that the Courts have found are beyond the implementation-after-impasse doctrine because they either arise from statute or contract, include union-security, dues check-off, and no-strike provisions, and an employer's withdrawal from multi-employer bargaining.
Also beyond the scope of the doctrine are those proposals which, if implemented, would tend to destroy rather than further the bargaining process. Thus, an employer's proposal to implement wage increases without limitation as to time, standards, criteria, or the union's agreement was found to be so "inherently destructive of the fundamental principles of collective bargaining that it could not be sanctioned as part of a doctrine created to break impasse and restore active collective bargaining." NLRB v. McClatchy Newspapers, Inc. , 321 NLRB 1386 (1996).
Impasse in the public sector is discussed on page 50.
What is the grievance and arbitration procedure referred to in the collective bargaining agreement?
The grievance and arbitration procedures referred to in the collective bargaining agreement are the mechanism used by the parties, most frequently the union, to administer the contract and further define the rights and obligations of the parties. The procedure is regarded as a more efficient and less costly means to resolve disputes over contract interpretation than litigation.
The grievance - essentially a complaint - is the first step of a multi-step process constructed by the parties used to resolve disputes. Generally, the first step involves efforts by the union to resolve the matter informally, that is, without having reduced the complaint to writing. If those efforts fail, the grievance is put in writing and aired at a hearing in which both the union and the employer present their respective arguments on the issue. There may be one or two more steps in this process before an arbitrator hears the matter. The precise number of steps before arbitration is determined by the parties and included in the collective bargaining agreement.
The procedure will include timeframes for submitting grievances and appealing unfavorable decisions, in order that disputed matters be resolved as efficiently and equitably as possible.
The final step in the process is arbitration. An arbitrator - often referred to as a third party neutral - hears each side of the dispute and renders a decision on the matter. The decision of the arbitrator is, for the most part, final and binding on both parties.
Is the arbitrator limited in deciding matters presented by the parties?
Yes. Because the grievance and arbitration process is a creation of the parties to the collective bargaining agreement, the parties define the authority of the arbitrator. Most frequently the arbitrator is asked to determine whether the contract has been violated and, if so, what the remedy should be.
As noted, however, the decision of the arbitrator is final and binding - for the most part. A party to the arbitration may appeal the arbitrator's ruling to the courts, but courts are limited in the scope of their review. The contours of the court's review were outlined in three cases decided by the U.S. Supreme Court and referred to collectively as the Steelworker's Trilogy .
The Steelworkers Trilogy makes clear that:
• The question of arbitrability (substantive arbitrability) is for the courts to decide and "[d]oubts should be resolved in favor of [arbitration]."
• The question of whether the grievance process was followed (procedural arbitrability) is for the arbitrator to decide.
• If the arbitrator's decision "draws its essence from the collective bargaining agreement" the courts may not revise the decision or refuse to enforce it merely because the court disagrees with the arbitrator's interpretation.
In sum, unless the decision of the arbitrator is clearly irrational and does not "draw its essence from the collective bargaining agreement," it is final and binding on the parties and will be enforced by the courts.
What do collective bargaining agreements mean when they refer to just cause for discipline and discharge?
Contracts usually include a clause referencing the right of the employer to discipline employees. Unions attempt to limit unfair treatment and unduly harsh discipline of employees by including a just cause standard in the collective bargaining agreement.
A finding that just cause existed usually presumes that:
• the employee had notice of the rule the employee is charged with violating;
• the employee had notice that his or her conduct may lead to discipline or discharge;
• the rule is reasonably related to the employee's employment;
• there was a fair investigation of the alleged infraction conducted in a timely manner;
• there is sufficient proof of the misconduct charged ;
• the rule is applied equally to all employees; and,
• the penalty is commensurate to the infraction and may take into account the employee's record.
What are Weingarten rights?
Weingarten rights provide that an employee, upon request, may have his or her union representative (often referred to as the shop steward) present when the employee is questioned by the employer about an issue that may result in discipline. The name is derived from the case in which the U.S. Supreme Court upheld these rights. NLRB v. J. Weingarten, Inc. , 420 U.S 251 (1975).
There are two important points that must be recalled with respect to an employee's Weingarten rights. First, the rights only come into play when the employer is investigating a matter which the employee reasonably believes may lead to discipline. Second, the employee must request the presence of the union representative, since the employer is not obligated to inform the employee of his or her Weingarten rights.
Because simple investigations can sometimes quickly become problematic, Weingarten rights are invaluable when it comes to protecting an employee's rights. And the invocation of the right does not suggest that the employee has committed any wrong.
What happens after an employee asks for union representation?
After an employee asks for union representation the employer has three choices:
• Stop the interview altogether;
• Stop the interview and ask the employee if he or she wishes to continue without union representation; or,
• Stop the interview until the union representative has arrived and has had an opportunity to confer with the employee.
What happens when the union representative arrives?
The union representative should ask for the opportunity to confer with the employee, since the employer does not have to give the union representative such an opportunity unless the representative requests it. However, the employer is obligated to inform the union representative of the subject matter of the investigation.
What can a union representative do during the questioning of the employee by the employer?
The U.S. Supreme Court has made it clear that the union representative is present to assist and counsel the employee.
The union representative can confer with an employee and advise the employee how to answer a question. And while a union representative cannot advise an employee not to answer a fair and straightforward question, the representative can advise an employee not to answer questions that are confusing, misleading, or abusive. The union representative can also ask that questions be clarified and ask the employer to explain the relevancy of certain questions when the relevancy is not apparent.
The union representative can - and should - ask questions of the employer. It is crucial to the effective representation of an employee who may be disciplined to require the employer to:
• Specify the allegation(s) or charge(s) being leveled against the employee;
• Identify who is making the allegation(s) or charge(s);
• Specify what evidence the employer has relied on (and provide copies where appropriate);
• Indicate what witnesses have said and whether any statement is in writing (and provide copies where appropriate).
As noted below, the union is entitled to information relevant to the processing of a grievance. For instance, in a discipline case in which an employee is charged with violating a company rule or policy, the union representative should request a copy of the rule or policy and inquire as to how the employees were made aware of the rule or policy.
What should a union representative do when a union member is charged with misconduct by the employer and there is the possibility that the member could also be charged criminally?
The union representative must be extremely cautious in such situations, not only with respect to any questioning an employer may undertake, but with respect to private conversations the representative may have with the union member charged with misconduct. Unless the union representative can claim a legal privilege (i.e., attorney-client privilege), disclosures by the union member will not be protected.
Many employers understand that an employee may be reluctant to respond to questions in the face of parallel criminal proceedings or possible criminal charges. The employer may, therefore, limit any discussion to informing the union member of the misconduct charge and engage in no further questioning.
However, some employers - even though fully aware that a union member might face criminal charges - might pursue questioning. It is inadvisable under circumstances such as these for the union member to respond to the employer's questioning. It should be noted, however, that an employer may draw an adverse inference from the employee's nonresponse to the employer's questions.
Even in those situations in which the union member does not answer the employer's questions, the union representative may still need to engage in fact finding in order to represent the employee on the employer's charge of misconduct. It is essential to determine the essential facts: Who, what, where, when, and what evidence has been relied on and is available.
What if the employer ignores the employee's request for union representation and proceeds to question the employee without such representation?
This can be a problem. The employer's conduct constitutes an unfair labor practice , but this does not mean that an employee's troubles will necessarily be resolved in the employee's favor . For instance, if the employee makes a self-incriminating statement - even though the requested representation was not provided - and, as a result of the information, the employer discharges the employee, it is very unlikely that the employee will be reinstated merely because he or she did not have union representation.
However, if the employee refuses to answer any questions until such time as his or her union representative is present, and, if - and only if - as a result of the employee's refusal to answer the employer's questions , the employee is fired, reinstatement and back pay may be ordered.
Are employers under any obligation to provide information for grievance hearings and arbitrations?
In addition to the duties of the employer to provide information during organizing efforts and contract negotiations, a union may be entitled to personnel records or other relevant information it needs to represent its members in grievance proceedings. If relevant information is not provided upon request, an arbitrator, at the request of a party, may issue a subpoena duces tecum (a legal demand for records).
What are the unfair labor practices of unions?
As set out in Section 8(b), it is an unfair labor practice for a union:
• "to restrain or coerce employees in the exercise of the rights guaranteed in Section 7 (however, a union may discipline members, provided that such discipline is not contrary to the policies of the Act, and the union is acting to further its own legitimate interests). . ." 8(b)(1)(A);
• "to restrain or coerce an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances . . ." 8(b)(1)(B);
• "to cause or attempt to cause an employer to discharge or otherwise discriminate against an employee except for the failure to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership . . ." 8(b)(2);
• "to refuse to bargain collectively with an employer (if the union has been designated as the representative by a majority of the employees) . . ." 8(b)(3);
• to induce or encourage employees to stop work or to threaten people engaged in commerce or industry in order to:
(A) force an employer or a self-employed person to join a union;
(B) force an employer to stop doing business with another employer or person, or to force any other employer to recognize and bargain with the union where the union has not been certified as the representative of that other employer's employees (secondary boycott);
(C) force an employer to recognize and bargain with a union where another union has been certified as the representative of the employees (strike against certification);
(D) force an employer to assign particular work to members of one union instead of to members of another union, unless the employer fails to conform to an order or certification of the Board determining the bargaining representative for employees performing such work (jurisdictional strike); 8(b)(4);
• to charge excessive fees as a precondition to union membership 8(b)(5);
• to cause or attempt to cause an employer to pay for work that is not performed (featherbedding) 8(b)(6);
• to engage in recognition picketing where the employer has lawfully recognized another union; a valid election was conducted within the past year; or, where the picketing continues for more than 30 days without a petition for election begin filed with the NLRB. 8(b)(7).
What is the union's responsibility to the members of the bargaining unit?
The U.S. Supreme Court has concluded that as a result of the union's status as the exclusive representative of employees, it has an obligation to "serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and avoid arbitrary conduct." This is referred to as the duty of fair representation .
How might the union breach its duty of fair representation ?
A union breaches its duty of fair representation if its actions are either arbitrary, discriminatory, or in bad faith. This tripartite standard applies to all union activity. The union will likely avoid problems if it attempts to treat members equally, handle similar cases consistently, investigate each grievance, maintain records, observe time limits, and provide an internal appeal process.
The union must be especially diligent when it has a dispute between two of its own members. It must make an independent determination as to the merits of the conflicting claims by investigating the case for both sides and must allow each side the opportunity to be heard prior to a decision by the union as to which side, if any, the union will take. Belanger v. Matteson , 346 A.2d 124 (1975).
Does the duty of fair representation mean that the union's representation of members or its administration of the contract will be error free?
No. Though each case will be determined by the facts, a union's negligent conduct does not mean that the union has breached its duty of fair representation . Courts have routinely held that the 'arbitrary, discriminatory, or bad faith' standard (first articulated by the U.S. Supreme Court in Vaca v. Sipes 386 U.S. 171 (1967) does not impose upon the union an onerous and unrealistic obligation and does not call for error-free conduct in the administration of the collective bargaining agreement. However, the Rhode Island Supreme Court has held that the perfunctory handling (i.e., the failure to perform the ministerial act of a timely demand for arbitration) of an employee's grievance amounts to more than mere negligence. Lee v. R.I. Council 94, AFSCME , 796 A.2d 1080 (R.I. 2002) and suffices as an element in a suit for the breach of fair representation.
What if the union violates the duty of fair representation ?
An employee who believes that his or her union has breached the duty of fair representation can file an unfair labor practice charge with the National Labor Relations Board or sue the union and/or employer in state or federal court. Before the Board or courts will hear such a claim, the employee must do all he or she can through the contract's and union's procedures. If the Board or courts uphold an employee's claim and finds that the union breached its duty of fair representation , lost pay, reinstatement, or other compensation can be awarded.
The Landrum-Griffin Act ( Labor-Management Reporting and Disclosure Act of 1959 ) outlines additional rights of individual union members. (See below).
What if a union member believes that an unfair labor practice has taken place?
Any employer, employee, or group of employees may file an unfair labor practice charge with the regional office of the National Labor Relations Board.
If anyone believes a violation has occurred, he or she should write to:
Regional Director
National Labor Relations Board, Region 1
Thomas P. O'Neill Federal Building, Room 601
10 Causeway Street
Boston, Massachusetts 02222-1072
(617) 565-6700
The Regional Office will send the appropriate forms and information to file a formal charge. The formal charge must be filed and served on the charged party within six months of the violation and contain a brief general description of what happened. Under the NLRB rules, the charging party has the responsibility for insuring that the charge is timely served on the charged party. Any employee, whether in a union or not, may file. No lawyer is required and there is no filing fee or other cost to the employee.
What will happen after the charge is made?
An NLRB investigator will look into the charge. This will involve determining jurisdiction, researching the facts of the case, and interviewing workers, union representatives, the employer, and other witnesses. The employer or labor organization is guilty of an unfair labor practice if it interferes with the investigation.
The investigator will then make a full report to the NLRB's regional office where it will be studied. If the regional office finds there was no violation, it will ask for the charge to be withdrawn. If the charge is not withdrawn, the regional office can dismiss the charge. This decision is subject to appeal to the General Counsel of the National Labor Relations Board in Washington, D.C.
If the regional office feels a violation did take place, the office will issue a complaint to the charged party. The charged party can demand a hearing, which is much like a trial. The decision of the hearing can also be appealed. Of course, the problem may be solved informally at any point along the way.
What if an unfair labor practice has been determined?
If the National Labor Relations Board finds that either an employer or a labor organization has committed an unfair labor practice, it has the power to order the practice stopped and to compensate the victim.
Common remedies ordered by the Board include reinstatement to a job with or without back pay, ordering new elections, or requiring employers to post notices concerning the rights of their employees. Each party has the right to appeal any of these orders, and it often takes years before a case is resolved.
What other laws protect the rights of union members within their unions?
The Labor-Management Reporting and Disclosure Act of 1959 (also known as the Landrum-Griffin Act ) is the basic federal law protecting individual rights of union members. It contains a "Bill of Rights" for union members and sets up procedures for union elections, discipline, and financial reporting.
Whom does the Landrum-Griffin Act cover?
The Landrum-Griffin Act applies to all members of unions in the private sector, and to those federal, state, or local government employees who belong to unions representing both public and private employees.
Must a union be run as a democracy?
Yes. Title I of the LMRDA insures all union members enjoy equal rights and a voice in the affairs of the union. Union members have the right to attend union meetings and the expression of opinion - at union meetings and elsewhere - to candidates or others - is expressly protected conduct. Union members are also free to assemble apart from union meetings and may discuss union issues without fear of reprisal. Members, of course, cannot interfere with the union's performance of its legal obligations.
Subject to reasonable rules and regulations in the union's constitution and by-laws, union members have the right to:
• vote in elections or referenda of the labor organization
• nominate candidates
• attend membership meetings
• participate in the deliberations and vote on the business of such meetings
• obtain a copy of the collective bargaining agreement
• file a grievance
Can a union discipline a member?
A union cannot discipline a member for exercising a protected right (even for suing the union in court or at the National Labor Relations Board). However, a member can be disciplined for activities such as crossing a picket line, disrupting union meetings, misusing funds, or not paying dues. The LMRDA provides a right to written charges, a full and fair hearing, and an impartial trial board before discipline can be imposed. The union cannot force or even encourage the employer to fire a worker for any reason except failure to pay union dues. See, NLRA , §8(b)(2) above.
How does the Landrum-Griffin Act affect elections held within unions?
Title IV of the Landrum-Griffin Act governs union elections. National or international unions, except a federation of national or international labor organizations, must hold elections at least once every five years. Local unions must conduct elections at least once every three years. In each case, the elected are chosen by secret ballot.
All candidates must have an equal opportunity to distribute campaign literature and are entitled to have an observer at the polls and at the counting of ballots. All union members must be notified fifteen days before the election and ballots must be preserved for one year.
If a union member alleges a violation of the election rules, he or she, after exhausting certain administrative steps (outlined in Title IV, Sec. 402(a)(1) and (2)), may file a complaint with the Secretary of Labor, who shall investigate. If the Secretary of Labor finds probable cause of a violation that has not been remedied, the Secretary shall bring a civil action. The Secretary must prove that the violation "may have affected the outcome" of the election (a preponderance of the evidence standard). If a violation is proved, the election will be set aside and a new election called for to be supervised by the Secretary of Labor.
What disclosures does the Landrum-Griffin Act require of unions?
Title II of the Act requires the union to make disclosures of two sorts. First, the union must adopt a constitution and by-laws and file a copy of each with the Secretary of Labor, along with a detailed report on numerous matters (i.e., qualifications or restrictions on membership, authorization for the disbursement of funds, financial audits, discipline of members, imposition of fines on members, ratification information, authorization for strikes, etc.) See, Title II, Sec. 201(a). Second, the union must file a financial report detailing matters such as salaries, loans, and other disbursements. Such reports must be made available to union members.
How can a union member enforce these rights?
The Landrum-Griffin Act provides union members with the right to sue their unions for violation of their rights, but, as noted above, may require the member to first pursue internal union procedures. A union member is almost always better off trying to resolve matters internally. If unsuccessful, the member may be entitled to sue the union in federal court or may file a complaint with the U.S. Department of Labor.
A union member who thinks his or her rights have been violated may contact:
U.S. Department of Labor
Office of Labor/Management Standards
2 Whitney Avenue
Suite 301
New Haven, CT 06510
(203) 773-2130
RHODE ISLAND PUBLIC SECTOR COLLECTIVE BARGAINING LAWS
Do public employees have a right to organize?
Yes. The organization of public employees came after the organization of their private sector counterparts. There was no single act (such as the NLRA ) extending the right to organize and bargain collectively to public employees. Consequently, the organization of public employees happened in something of a piecemeal fashion and this is reflected in the several statutes affording public employees the right to bargain collectively.
What statutes extend collective bargaining rights to public employees in Rhode Island?
There are seven statutes that provide the various public employees with the right to organize and bargain collectively. Listed by title and chapter, they are:
• Fire Fighters' Arbitration Act (R.I.G.L. §28-9.1)
• Municipal Police Arbitration Act (R.I.G.L. §28-9.2)
• School Teachers' Arbitration Act (R.I.G.L. §28-9.3)
• Municipal Employees' Arbitration Act (R.I.G.L. §28-9.4)
• State Police Arbitration Act (R.I.G.L. §28-9.5)
• 911 Employees' Arbitration Act (R.I.G.L. §28-9.6)
• Organization of State Employees (R.I.G.L. §36-11)
What do these laws provide?
Although the laws differ in certain respects, they have a similar structure. Each provides for the employees' right to organize and bargain collectively. They also obligate the employer to recognize the association or organization selected by the employees. Most important - and unlike the laws governing the organization of private sector employees - each law provides some dispute resolution mechanism.
The laws fit within the broader scheme of the Rhode Island State Labor Relations Act. R.I.G.L. § 28-7-1 , et seq. The Rhode Island State Labor Relations A ct is modeled on the National Labor Relations Act . The state Act outlines unfair labor practices for employers and for public sector employee unions, too. The Act also established the Rhode Island State Labor Relations Board.
The Rhode Island State Labor Relations Act ( RISLRA ) and the National Labor Relations Act are not identical, however. The RISLRA defines the terms "employer" and "employee" more broadly than its national counterpart, embracing both public and private sector parties. However, private sector employees meeting the jurisdictional requirements of the National Labor Relations Board generally seek recourse through the NLRB, while those private sector employees that do not meet the jurisdictional requirements of the NLRB find recourse through the State Labor Relations Board. Of course, since public sector employees are excluded under the NLRA, their only recourse (for elections and to redress unfair labor practices) is to the State Labor Relations Board.
If public employees decide to organize, must they seek established labor groups to represent them?
No. Public employees, like private sector employees, may form their own labor group and do their own bargaining. Many labor groups, however, seek to merge, or affiliate with larger state and national labor organizations for support and assistance.
Is the scope of bargaining the same for public employees as it is for private sector employees?
Not quite. While public employees can bargain over many of the same subjects as their private sector counterparts, the scope is narrower, often limited by state statutes and city charters. For instance, Rhode Island's public employees are prohibited by statute from bargaining over any and all matters relating to the state retirement system.
While a limit on bargaining may not be expressly stated in a statute or a city charter, courts have in certain instances held that parties to a collective bargaining agreement cannot strike a bargain that contravenes a statute or charter provision.
How is an impasse in bargaining dealt with in public sector bargaining?
That depends on which public sector group is bargaining. The various statutes - specific to each of the various public sector groups - outline sometimes similar paths to resolve issues unresolved through collective bargaining.
Several statutes (State Police Arbitration, Municipal Police Arbitration, Firefighters' Arbitration, and 911 Employee's Arbitration) are straight forward and provide, simply, that any unresolved matter can be submitted to arbitration if the parties are unable to reach agreement within 30 days of their first meeting. The arbitrators consider factors (specific to each group) such as:
• Wages of comparable groups;
• Physical qualifications;
• Job Training and skills;
• Interest and welfare of the public; and,
• Mental qualifications.
With respect to each of the above groups, the majority decision of the arbitrators is binding on the parties.
The statutes concerning certified school teachers, municipal employees, and the state employees are somewhat more involved. Each provides that either party to bargaining may request mediation and conciliation within 30 days of their first meeting. The Municipal Employees' statute mandates participation in mediation and conciliation once commenced.
Each statute also provides for arbitration in the event that mediation and conciliation either fails or is not requested. R.I.G.L. § 36-11-8 provides for conciliation and fact finding as a possible intermediate step between mediation and arbitration for state employees.
All three statutes (Teachers' Arbitration statute, Municipal Employees' Arbitration statute, and the state employee statute) also provide that unresolved issues can be submitted to the Director of Labor and Training for compulsory mediation within a specified number of days before the last day on which money can be appropriated by the appropriating authority. Mediation in each instance can continue until the date upon which money is scheduled to be appropriated.
Finally, each of these statutes provides that if the parties have not reached agreement within a specified number of days of a certain event the unresolved issue can be submitted to the Director of Labor and Training for compulsory mediation. Those timeframes are:
• 10 days before the close of school in June of the last year of the contract for teachers (R.I.G.L. §28-9.3-9(c));
• 30 days before school begins for municipal employees employed by a school board (R.I.G.L. §28-9.4-10(c));
• 10 days before the expiration of a contract for other municipal employees (R.I.G.L. §28-9.4-10(c)); and,
• 10 days before the expiration of the contract for state employees (R.I.G.L. R.I.G.L. §36-11-7.1(c)).
With respect to state employees, the decision of the arbitrator is binding as to all issues and matters other than an issue which involves wages. The decision is advisory on the issue of wages. With respect to municipal employees and school teachers, the decision of the arbitrator is binding on all matters not involving the expenditure of money.
Does the State Labor Relations Board serve a function similar to that of the National Labor Relations Board?
Yes. The Rhode Island State Labor Relations Board is a seven-member board that serves as interpreter of the labor relations' statutes. The Rhode Island State Labor Relations Board will:
• hear petitions for representation and unit clarification, and
• prevent and remedy unfair labor practices.
What is the composition of the State Labor Relations Board?
The board is comprised of three representatives of labor, three representatives of management, and one representative of the general public. The governor appoints the chairman of the board. Like their NLRB counterparts, the State Labor Relations Board will consider petitions for representation, unit clarification, and conduct hearings on unfair labor practices, and any other matters covered by the state Act.
The Board can be contacted at:
Rhode Island State Labor Relations Board
1151 Pontiac Avenue
Cranston, Rhode Island 02920
(401) 462-8830
Is federal labor law binding on the State Labor Relations Board?
No. While the state Board may look to federal law and the decisions of the National Labor Relations Board for guidance, those decisions are not binding on the state Board. The state Board has developed its own rulings and policies, which may differ in some respect from those of the NLRB.
Similarly, in their review of State Labor Board decisions, the state courts have expressed a "willingness to look to federal labor law for guidance in resolving labor questions" Board of Trustees v. Rhode Island State Labor Relations Board , 694 A.2d 1185, 1189 (R.I. 1997)(italics added), but they too have developed their own line of labor law which may vary at times from the federal labor law.
The decisions of the State Labor Relations Board are available (along with certifications and forms) on the Rhode Island State Labor Relations Board web page.
