Collective Bargaining

When employees of an organization vote to unionize, the process for collective bargaining begins. Collective
bargaining is the process of negotiations between the company and representatives of the union. The goal is
for management and the union to reach a contract agreement, which is put into place for a specified period of
time. Once this time is up, a new contract is negotiated.

The Process of Collective Bargaining

In any bargaining agreement, certain management rights are not negotiable, including the right to manage and
operate the business, hire, promote, or discharge employees. However, in the negotiated agreement there may
be a process outlined by the union for how these processes should work. Management rights also include the
ability of the organization to direct the work of the employees and to establish operational policies. As an HR
professional sits at the bargaining table, it is important to be strategic in the process and tie the strategic plan
with the concessions the organization is willing to make and the concessions the organization will not make.
Another important point in the collective bargaining process is the aspect of union security. Obviously, it is in
the union’s best interest to collect dues from members and recruit as many new members as possible. In the
contract, a checkoff provision may be negotiated. This provision occurs when the employer, on behalf of
the union, automatically deducts dues from union members’ paychecks. This ensures that a steady stream of
dues is paid to the union.

In a collective bargaining process, both parties are legally bound to bargain in good faith. This means they have a
mutual obligation to participate actively in the deliberations and indicate a desire to find a basis for agreement.
There are three main classifications of bargaining topics: mandatory, permissive, and illegal. Wages, health and
safety, management rights, work conditions, and benefits fall into the mandatory category. Permissive topics are
those that are not required but may be brought up during the process. An example might include the
requirement of drug testing for candidates or the required tools that must be provided to the employee to
perform the job, such as a cellular phone or computer. It is important to note that while management is not
required by labor laws to bargain on these issues, refusing to do so could affect employee morale. We can also
classify bargaining issues as illegal topics, which obviously cannot be discussed. These types of illegal issues may
be of a discriminatory nature or anything that would be considered illegal outside the agreement.

Examples of Bargaining Topics: Pay rate and structure, Health benefits, Incentive programs, Job classification,
Performance assessment procedure, Vacation time and sick leave, Health plans, Layoff procedures, Seniority,
Training process, Severance pay, Tools provided to employees, Process for new applicants

The collective bargaining process has five main steps; The first step is the preparation of both parties. The
negotiation team should consist of individuals with knowledge of the organization and the skills to be an effective
negotiator. An understanding of the working conditions and dissatisfaction with working conditions is an
important part of this preparation step. Establishing objectives for the negotiation and reviewing the old contract
are key components to this step. The management team should also prepare and anticipate union demands, to
better prepare for compromises.

Steps in Collective Bargaining

The second step of the process involves both parties agreeing on how the time lines will be set for the
negotiations. In addition, setting ground rules for how the negotiation will occur is an important step, as it lays
the foundation for the work to come.

In the third step, each party comes to the table with proposals. It will likely involve initial opening statements and
options that exist to resolve any situations that exist. The key to a successful proposal is to come to the table with
a “let’s make this work” attitude. An initial discussion is had and then each party generally goes back to
determine which requests it can honor and which it can’t. At this point, another meeting is generally set up to
continue further discussion.

Once the group comes to an agreement or settlement (which may take many months and proposals), a new
contract is written and the union members vote on whether to accept the agreement. If the union doesn’t agree,
then the process begins all over again.

Ramifications of a Bargaining Impasse

When the two parties are unable to reach consensus on the collective bargaining agreement, this is called a
bargaining impasse. Various kinds of strikes are used to show the displeasure of workers regarding a bargaining
impasse. An economic strike is a strike stemming from unhappiness about the economic conditions during
contract negotiations. An unfair labor practices strike can happen during negotiations. The goal of an unfair labor
practices strike is to get the organization to cease committing what the union believes to be an unfair labor
practice. A bargaining impasse could mean the union goes on strike or a lockout occurs. The goal of a lockout,
which prevents workers from working, is to put pressure on the union to accept the contract. A lockout can only
be legally conducted when the existing collective bargaining agreement has expired and there is truly an impasse
in contract negotiations. Similarly, the goal of a strike is to put pressure on the organization to accept the
proposed contract. Some organizations will impose a lockout if workers engage in slowdowns, an intentional
reduction in productivity. Some unions will engage in a slowdown instead of a strike, because the workers still
earn pay, while in a strike they do not. A sick-out is when members of a union call in sick, which may be illegal
since they are using allotted time, while a walk-out is an unannounced refusal to perform work. However, this
type of tactic may be illegal if the conduct is irresponsible or indefensible, according to a judge. Jurisdictional
strikes are used to put pressure on an employer to assign work to members of one union versus another (if there
are two unions within the same organization) or to put pressure on management to recognize
one union representation when it currently recognizes another. The goal of a sick-out strike is to show the
organization how unproductive the company would be if the workers did go on strike.

Sympathy strikes are work stoppages by other unions designed to show support for the Union on strike. While
they are not illegal, they may violate the terms of the collective bargaining agreement.

Working with Labor Unions

The contract (also called the collective bargaining agreement) is the guiding document for all decisions relating to
employees. All HR professionals and managers should have intimate knowledge of the document and be aware of
the components of the contract that can affect dealings with employees. The agreement outlines all
requirements of managers and usually outlines how discipline, promotion, and transfers will work. Because as
managers and HR professionals we will be working with members of the union on a daily basis, a positive
relationship can not only assist the day-to-day operations but also create an easier bargaining process. Solicitation
of input from the union before decisions are made can be one step to creating this positive relationship.
Transparent communication is another way to achieve this [Link] HR, one of the major aspects of working with
labor unions is management of the union contract.

Union Busting

The employees in your organization are unhappy with several aspects of their job, including pay. You have tried
to solve this issue by creating new compensation plans, but with no avail. You hear talk of unionizing.
Key Takeaways

 A union has two goals: to add new members and to collect dues. A check-off provision of a contract
compels the organization to take union dues out of the paycheck of union members.

 Collective bargaining is the process of negotiating the contact with

union representatives. Collective bargaining, to be legal, must always be done in good faith.

 There are three categories of collective bargaining issues. Mandatory issues might include pay and
benefits. Permissive bargaining items may include things such as drug testing or the required equipment
the organization must supply to employees. Illegal issues are those things that cannot be discussed, which
can include issues that could be considered discriminatory.

 The collective bargaining process can take time. Both parties prepare for the process by gathering
information and reviewing the old contract. They then set time lines for the bargaining and reveal their
wants and negotiate those wants. A bargaining impasse occurs when members cannot come to an
agreement.

 When a bargaining impasse occurs, a strike or lockout of workers can occur. An economic strike occurs
during negotiations, while an unfair labor practices strike can occur anytime, and during negotiations.
A sick-out can also be used, when workers call in sick for the day. These strategies can be used to
encourage the other side to agree to collective bargaining terms.

 Some tips for working with unions include knowing and following the contract, involving unions in
company decisions, and communicating with transparency.

The National Labor Relations Board- Organization and Functions

The National Labor Relations Board (NLRB) is an independent federal agency created in 1935 and vested with the
power to safeguard employees’ rights to organize, engage with one another to seek better working conditions,
choose whether or not to have a collective bargaining representative negotiate on their behalf with their
employer, or refrain from doing so.

The NLRB also acts to prevent and remedy unfair labor practices committed by private sector employers and
unions, as well as conducts secret-ballot elections regarding union representation.

The National Labor Relations Board (NLRB) consists of five board members, appointed by the president and
confirmed by the Senate, who serve for five-year, staggered terms.

The president designates one of the members as chairman. The president also appoints the general counsel,
who is in charge of the board’s investigatory and prosecutorial functions and who represents the NLRB when it
goes (or is taken) to court.

The general counsel also oversees the thirty-three regional offices scattered throughout the country, each of
which is headed by a regional director.

The General Counsel, appointed by the President to a 4-year term, is independent from the Board and is
responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of
the NLRB field offices in the processing of cases.

The NLRB serves two primary functions: (1) it investigates allegations of unfair labor practices and provides
remedies in appropriate cases, and (2) it decides in contested cases which union should serve as the exclusive
bargaining agent for a particular group of employees.

Unfair Labor Practice Cases

Unfair labor practice cases are fairly common; some twenty-two thousand unfair labor practice claims were filed
in 2008. Volume was considerably higher thirty years ago; about forty thousand a year was typical in the early
1980s. A charge of an unfair labor practice must be presented to the board, which has no authority to initiate
cases on its own. Charges are investigated at the regional level and may result in a complaint by the regional
office. A regional director’s failure to issue a complaint may be appealed to the general counsel, whose word is
final (there is no possible appeal).

A substantial number of charges are dismissed or withdrawn each year—sometimes as many as 70 percent. Once
issued, the complaint is handled by an attorney from the regional office. Most cases, usually around 80 percent,
are settled at this level. If not settled, the case will be tried before an administrative law judge, who will take
evidence and recommend a decision and an order. If no one objects, the decision and order become final as the
board’s opinion and order. Any party may appeal the decision to the board in Washington. The board acts on
written briefs, rarely on oral argument. The board’s order may be appealed to the US court of appeals, although
its findings of fact are not reviewable “if supported by substantial evidence on the record considered as a whole.”
The board may also go to the court of appeals to seek enforcement of its orders.

Representation Cases

The NLRB is empowered to oversee representative elections—that is, elections by employees to determine
whether or not to be represented by a union. The board becomes involved if at least 30 percent of the members
of a potential bargaining unit petition it to do so or if an employer petitions on being faced with a claim by a
union that it exclusively represents the employees. The board determines which bargaining unit is appropriate
and which employees are eligible to vote. A representative of the regional office will conduct the election itself,
which is by secret ballot. The regional director may hear challenges to the election procedure to determine
whether the election was valid.

1. Union Strikes
The Hollywood Writers’ Strike

The most contentious area, both economically and ethically, of union action involves strikes: workers collectively
walking off the jobsite in an attempt to pressure employers to accede to their demands. The Writers Guild of
America (WGA) led one of the most publicized recent walkouts when Hollywood script writers put down their
pencils and closed their laptops—at least officially—in November of 2007. By the time they returned in early
2008, the economic damage wrought in the Los Angeles basin was massive, $3.5 billion according to some
estimates, but the resolution ultimately satisfied most members of the moviemaking community.

During the strike, two constellations of ethical issues came to the fore. First, questions involved

 the right for workers to not work,

 the right of employers to find someone who will work,

 the rights of third parties to go on with their lives and work.

Justifying Not Working

Some Hollywood writers are contracted by faceless studios to churn out rewrites for movies; others generate TV
dramas and soap operas. There’s work to be done inventing jokes for sitcoms like The Office, and opening
monologues for Jay Leno’s Tonight show need to be written a few days every week. As the writers’ strike
extended, the walkout’s effects beamed into living rooms. Almost immediately, Leno went into reruns. The Office,
which had a few episodes in the can, lasted several weeks. The moviemakers—many of whom live underneath
piles of scripts submitted unsolicited by writers—kept going.
Out on the picket lines, Leno zipped around in his vintage sports car to support the stoppage, and occasionally
stopped to chat with the strikers and crack good-humored jokes. Of course Leno, who makes millions a year,
probably didn’t really need his paychecks. Others in Hollywood, however, live from day to day and without much
room for unemployment. Set designers, prop companies, on-site catering services, all the people surrounding the
now-halted industry saw their income wither. In the face of the injurious consequences, three arguments
nonetheless favor and justify the writers’ walkout.

1. The rights argument in favor of the workers’ strike is direct and convincing for many: all individuals have a
right to not go to work in the morning. Whether we’re talking about a union action or just someone who
wakes up with a hangover, any ethical theory that takes its bearings from individual rights is generally
going to turn in a verdict in favor of the worker’s right to stay home.

2. The last resort argument affirms that workers are justified in striking when three conditions are met: First,
there must be a just cause. The driving issue cannot be petty angers or interpersonal conflicts of some
kind; instead, the motive must be wages or working conditions that are out of step with industry norms or
reasonable expectations. In the writers’ case, this condition may have been met because they represented
one of the few talent sectors not benefitting from payments for programming broadcast over new media,
especially the Internet. Second, there must be proper authorization, which means the workers themselves
must support the action, and have reached a well-deliberated decision. In the writer’s case, most did
support the action, which had been planned for months. Third, the strike must be a last resort, meaning
attempts to find solutions must’ve been fully explored. Here too writers met the condition as long
negotiations had explored most possible solutions.

3. The marketplace argument is the rawest of the justifications for striking, and it answers the ethical
question with economic facts. If workers can get away with striking, the reasoning goes, then they’re
justified. The argument is less flippant than it sounds. If workers really are being underpaid for their
labors, then when an employer seeks others to replace those who’ve walked out, none will emerge, at
least none capable of doing the work well. On the other hand, if market conditions determine that the
striking workers are demanding more than they legitimately should within the current economic context,
then when an employer tries to replace strikers with fresh hires, the cost of doing so will be less than the
wage increase the strikers are demanding.

On the other side, the kinds of arguments normally set up to obligate striking workers to return to their stations
involve responsibilities to the larger community:

1. The public safety argument applies only in selected situations. The famous air-traffic controllers’ strike in
the 1980s involved the safety of fliers. Similarly, police officers, firefighters, and similar may find it difficult
to justify a full-fledged strike given the serious suffering that may result. There are many borderline cases,
however. For example, in Tennessee some fire departments collect fees directly from those they protect.
In one case, a man who hadn’t paid found that his house was on fire and called the department; they
responded, but only to protect nearby homes from the fire’s spread. They watched the flaming home burn
to the foundation without intervening because the bill hadn’t been paid. Of course, the situation would’ve
been different had a person been trapped inside. In this case, however, the loss and dispute was entirely
about money. Jason Hibbs, “Firefighters Watch as Home Burns to the Ground,” WPSD, September 29,
2010, accessed June 9, 2011, [Link]/news/local/Firefighters-watch-as-home-burns-to-the-
[Link].

2. The public welfare argument against workers going on strike weighs in when strikes affect third parties,
people outside the initial dispute. The scriptwriters’ walkout, for example, left a large chunk of Hollywood
unemployed. The most rudimentary way to elaborate the argument is simply to note that the suffering
caused across the entire industry by the five-month writers’ strike almost surely outweighed the benefits
the writers finally obtained. It should also be remembered, however, that if some workers somewhere
don’t draw the line against owners and employers, those employers will have no incentive to not
push everyone’s wages down, ultimately affecting the welfare of most all the industry’s participants.
 3. The immediate welfare argument against the writers’ strike finds support in an ethics of care. An ethics of
care values most highly an individual’s immediate social web; concern for those people who are nearest
outweighs abstract rules or generalized social concerns. In the case of the Hollywood writers’ strike, the
suffering incurred by families and friends related to particular strikers may be taken to outweigh any
benefits the broad union collective won from the action.

Finally, it’s important to note that strikes don’t need to be long-term walkouts. The dynamic and ethics
surrounding the refusal to work change when, for example, a union decides to go on strike for only a single day as
a way of pressuring management.

Standing in Line and Crossing It: The Ethics of Supporting Strikes and Breaking Them

The Hollywood writers’ strike featured some big-name backing. Jay Leno cruised around in his Bugatti; Steve
Carell, star of The Office, refused to cross the picket lines; and Sally Field mingled with writers in the Disney
Studios lot. These shows of support scored public relations points and provoked this question: what obligation do
workers in related fields hold to support strikers?

The range of responses corresponds well with those already outlined to justify the unionization of workers in a
particular shop.

 One way to oblige workers in related fields to support strikers is the argument from fairness. When
workers in a certain industry strike and win concessions, those gains may be cited by other workers as
justifying their own demands. In fact, in Hollywood the writers themselves had used this strategy in the
past: instead of going on strike, they’d waited for the directors union (Directors Guild of America) to
negotiate demands with the major studios and then used those results to make their own case for
concessions. The argument for supporting striking workers based on fairness is that all workers for a
particular company or across an industry may well benefit when one group makes gains, and if that’s so,
then those other groups also have a responsibility to support the strikers when they’re sacrificing.

 A second argument is based on solidarity, on the idea that an alliance between workers in an industry is
ethically natural: there’s an obligation to share in a struggle when facing similar challenges. Because other
members of the Hollywood community are uniquely positioned to understand the realities and hardships
of screenwriting life, they have a duty to act on that empathy.

As events transpired, the WGA did, in fact, receive wide support from across Hollywood, but the solidarity was far
from complete. As this outburst from a writer’s blog shows, some network studios tried to keep their soap operas
in production by hiring strikebreakers, or scabs, as they’re known to picketers:

The scab writers work under fake names, work from home and use different email addresses so only the
executive producer knows the real identities of the scabs. These tend to be experienced soap writers who aren’t
currently on a show. They are then promised employment after the strike is over. While they’re scabbing, they get
paid less than union writers. John Aboud, “Scabbing Doesn’t Pay (For Long),” United Hollywood (blog), November
8, 2007, accessed June 9, 2011, [Link]
[Link].

This under-the-table scripting captures a conflict inherent in the union’s attempt to use economic force against
employers. On one side, by cutting off their labor, strikers are trying to win concessions through economic force.
But their success depends on the suspension of basic economic rules: as this blogger is admitting,
there are scriptwriters out there willing to work at current wages for the studios. It sounds like they may even be
willing to work for less.

For these secretive scriptwriters, what ethical justifications can be mounted for what is, in essence, picket-line
crossing? The blog post decrying scab workers actually rallied some to post arguments in the strikebreakers’
defense. One comes from a poster named Jake: “Maybe he [the blogger writing the original post complaining
about strikebreakers] has unlimited funds somewhere and can stay out of work forever, but some need to
support themselves now.” Jake, November 8, 2007 (6:44 a.m.), comment on John Aboud, “Scabbing Doesn’t Pay
(For Long),” United Hollywood Blog, November 8, 2007, [Link]
[Link].

The argument here is that we all have fundamental duties to ourselves that must be served before deferring to
others. It’s not, in other words, that scriptwriters should feel no obligation to their colleagues, but all of us have a
deeper responsibility to our own welfare (and possibly to that of our family members who may depend on us),
and that responsibility takes precedence when the situation becomes extreme, when going without work
represents more than just an inconvenience.

Another argument wraps through the following exchange between two blog readers. The first, who registers his
comment anonymously, writes, “I’m a little amazed by some of these comments.…Do you guys [who support
strikebreakers] not know about unions? Do you not understand what it means to cross a picket line?…People
need to work for just (as in fair) pay.” Anonymous, November 8, 2007 (8:15 a.m.), comment on John Aboud,
“Scabbing Doesn’t Pay (For Long),” United Hollywood Blog, November 8,
2007, [Link]

This response comes from a poster named Tim: “Anonymous said, ‘Do you not understand what it means to cross
a picket line?’ Yes, it means you are trying to work for someone who wants to pay you. In moral terms, it’s just a
voluntary mutually beneficial exchange that for the most part is no one else’s business. Members of a union do
and should have the right to refuse to provide a service, but they don’t have a right to prevent others from
providing the service.” Tim, November 8, 2007 (8:32 a.m.), comment on Anonymous, “Scabbing Doesn’t Pay (For
Long),” United Hollywood Blog, November 8, 2007, [Link]
[Link].

Tim’s argument is based on the principle of free agency and the ethics of freedom. According to him, what’s
morally right is any action particular scriptwriters and studio owners agree to undertake. The only ethical
obligation individuals have is to not violate the freedom of others and, according to Tim, everyone involved in this
strikebreaking is acting freely without stopping others from doing the same. The strikers, like the strikebreakers,
may go to work—or not go—whenever they like. To the extent that’s right, ethical objections shouldn’t be raised
against either choice.

The key phrase in Tim’s response is that the strikebreaking writers’ actions are “no one else’s business.” Those
defending the union could choose to intervene here and assert that the claim is fundamentally wrong. Ethics
depends on compassionately taking account of others’ interests, and factoring them into your own decisions:
what writers decide to do must serve not only their own but also the general welfare. Possibly, Tim could respond
to this by asserting that in a market economy the best way to serve the general welfare is for individuals to
pursue their own success. There are responses to this argument too, and the discussion continues.

Key Takeaways

 A rights argument and a marketplace argument may lend ethical support to workers’ decision to strike.

 Ethical arguments against striking may derive from broad social concerns, or justifiably privileging one’s
own interests.

 Arguments in favor of supporting strikers from outside the union may stand on conceptions of fairness or
solidarity.

 Both strikebreakers and employers may claim the right to bypass union demands based on economic
realities, or their rights as free agents.

1. Grievance Process
A grievance procedure or process is normally created within the collective bargaining agreement. The grievance
procedure outlines the process by which grievances over contract violations will be handled. As you have
probably already identified, the grievance procedure is a formalized conflict. Learning how to handle this type of
conflict takes self-management skills—or the ability to avoid taking things personally—and relationship
management skills. This will be the focus of the next section.

Procedures for Grievances

A violation of the contract terms or perception of violation normally results in a grievance. The process is specific
to each contract, so we will discuss the process in generalities. A grievance is normally initiated by an employee
and then handled by union representatives. Most contracts specify how the grievance is to be initiated, the steps
to complete the procedure, and identification of representatives from both sides who will hear the grievance.
Normally, the human relations department is involved in most steps of this process. The basic process is shown
below:

Figure: A Sample
Grievance Process

Why Human Relations?

The discussion of labor unions in this chapter applies to many of the human relations skills we have discussed so
far—for example, negotiation, handling conflict, teamwork, and communication. Without these important
aspects, effective running of unions would not be possible. Because conflicts happen between union and
management, the ability to manage the conflict in a positive way (relationship management emotional
intelligence skill) can not only help the negotiations but also help you achieve success with a contract everyone is
happy with.

While it pertains to all companies, human relations skills become that much more important to those that have a
union environment where management and employees must work together. Conflict in these situations can
result in major issues on both sides, such as grievances and strikes. Employing effective human relations skills can
reduce conflict and raise productivity in a union environment.

The first step is normally an informal conversation with the manager, employee, and possibly a union
representative. Many grievances never go further than this step, because often the complaint is a result of a
misunderstanding.

If the complaint is unresolved at this point, the union will normally initiate the grievance process by formally
expressing it in writing. At this time, HR and management may discuss the grievance with a union representative.
If the result is unsatisfactory to both parties, the complaint may be brought to the company’s union grievance
committee. This can be in the form of an informal meeting or a more formal hearing.

After discussion, management will then submit a formalized response to the grievance. It may decide to remedy
the grievance or may outline why the complaint does not violate the contract. At this point, the process is
escalated.

Further discussion will likely occur, and if management and the union cannot come to an agreement, the dispute
will normally be brought to a national union officer, who will work with management to try and resolve the issue.
A mediator may be called in, who acts as an impartial third party and tries to resolve the issue. Any
recommendation made by the mediator is not binding for either of the parties involved. Mediators can work both
on grievance processes and collective bargaining issues. For example, when the National Football League (NFL)
and its players failed to reach a collective bargaining agreement, they agreed to try mediation. [1] In this case, the
agreement to go to mediation was a positive sign after several months of failed negotiations. In the end, the
mediation worked, and the NFL players started the 2011–12 season on time.

If no resolution develops, an arbitrator might be asked to review the evidence and make a decision. An arbitrator
is an impartial third party who is selected by both parties and who ultimately makes a binding decision in the
situation. Thus arbitration is the final aspect of a grievance.

Some examples of grievances might include the following:

1. One employee was promoted over another, even though he had seniority.

2. An employee doesn’t have the tools needed to perform his or her job, as outlined in the contract.

3. An employee was terminated, although the termination violated the rules of the contract.

4. An employee was improperly trained on chemical handling in a department.

Most grievances fall within one of four categories. There are individual/personal grievances, in which one
member of the union feels he or she has been mistreated. A group grievance occurs if several union members
have been mistreated in the same way. A principle grievance deals with basic contract issues surrounding
seniority or pay, for example. If an employee or group is not willing to formally file a grievance, the union may file
a union or policy grievance on behalf of that individual or group.

The important things to remember about a grievance are that it should not be taken personally and, if used
correctly, can be a fair, clear process to solving problems within the organization.