Labor Disputes and Grievance Process: Mediation, Arbitration, and Strikes - Prof. Yunchen , Study notes of Introduction to Business Management

Download Labor Disputes and Grievance Process: Mediation, Arbitration, and Strikes - Prof. Yunchen and more Study notes Introduction to Business Management in PDF only on Docsity! MGT 3500 Morgan Spring 2011 Final Chapters 12, 14, 15 Chapter 12—Impasses and Their Resolution I. Impasse definition a. Occurs when the parties are unable to reach an agreement i. Non-overlapping settlement ranges 1. More difficult to overcome ii. One or both parties are unable or unwilling to communicate info 1. Helped by mediation b. Taft-Hartley Act i. If parties are at an impasse and the contract has expired, in most circumstances the union is free to strike and the employer is free to lock out employees ii. Much more complicated under RLA 1. Must petition National Mediation Board (NMB) 2. 30-day cooling off period 3. Then NMB decides if strikes or lockouts are allowed II. Third-Party Involvement a. Three Types i. Mediation 1. Overview a. Neutral third party tries to assist parties to reach agreement b. Procedures tailored to situation i. Aimed at opening communications ii. Aimed at identifying settlement cues that may have been missed c. May be hard to reinstate bargaining d. Get parties face-to-face to reach a settlement i. Need to communicate and negotiate but not with meanness ii. Bargainers get the best possible deal e. Keep communication open 2. Mediator Behaviors and Outcomes a. Tries to create an acceptable package by obtaining the facts in dispute and parties’ settlement priorities i. “make a deal” both can accept b. Through info exchanges to help establish priorities and prepare negotiating proposals, they orchestrate how parties build settlement c. Facilitates settlement in 6 ways i. Reducing hostility through focus on bargaining objectives ii. Enhancing understanding of opponent’s position iii. Adjusting negotiation formats through chairing, subcommittee creation and the like iv. Assuming the risk in exploring new solutions v. Affecting perceptions regarding costs of conflict vi. Contributing to face-saving facilitating concessions d. Intense disputes reduce likelihood of mediated settlements i. Intense mediation involves parties being willing to discuss true feelings before meeting and discuss real costs of proposed packages 3. Mediator Backgrounds and Training a. FMCS mediators usually have experience negotiating contracts, regardless of whether they bargained for managements or unions b. Many have long experience in FMCS c. New ones have a 2 week training in DC and then work under an experienced mediator for a year 4. Mediator Activity a. Parties must notify FMCS 30 days before contract expiration when under negotiation and not reaching an agreement b. Most cases do not require mediator intervention i. Used more often in first contracts and when term of contract is for 3 yrs c. Helps parties settle on own terms when they have been unable to do so without assistance ii. Fact-Finding 1. Overview a. In 19th century used to fix blame on one party rather than finding causes of dispute b. Now, a neutral party studies the issues in dispute and publishes a recommendation for settlement c. Used primarily in Taft-Hartley emergency disputes 2. Fact-Finding and the Issues a. In the private sector, they are not very successful on distributive bargaining issues i. Make recommendations, not personally facilitate bargaining b. RLA emergency board fact finders have had some success i. New technology raised job security ii. Implement solutions proposed by neutrals without much resistance iii. Facilitate integrative bargaining iii. Interest Arbitration 1. Frequently used in public sector 2. Interests arbitration deals with situations in which parties have an interest in the terms of the agreement because the contract will specify future rights a. Offered by NMB in impasses 3. Rights arbitration involves the interpretation of an existing contract to determine which party is entitled to a certain outcome or to take a certain action b. Only arbitration guarantees resolution III. Strikes a. Definitions i. Employees refuse to work ii. Economic strike—called after a contract expires and usually after there is an impasse to pressure the employer to settle on the unions’ terms iii. Unfair labor practice strikes—protests employer labor law violations iv. Wildcat strike—an unauthorized stoppage during the contract i. Perishable goods 1. At the mercy of the union 2. Under great pressure to settle quickly 3. Use lockouts to decrease union power in situations when the lockout is done to avoid economic loss or to preserve customer goodwill ii. Multiemployer bargaining units 1. Whipsaw—a bargaining tactic in which a union settles contracts sequentially, demanding a higher settlement in each subsequent negotiation c. Single-Employer Lockouts i. No need to defend against a whipsaw ii. Unless an impasse occurs, a lockout cannot be implemented VI. Bankruptcies a. Some firms use this to gain concessions or to escape existing contracts without negotiating b. If debtor-in-possession shows bargaining agreements to be a burden or the business, the bankruptcy courts may allow for rejection Chapter 14—Contract Administration I. The Duty to Bargain a. Covers the entire relationship from recognition onward i. Grievance procedures ii. Duty to bargain is fulfilled by using agreed-on steps b. Conventional Contract Administration i. Management takes initiative here 1. How to operate facilities 2. How to discipline employees ii. Union reacts if it senses a result is inconsistent with its interpretation of contract and work rules c. Empowered Work Environments i. Developed self-managed work teams 1. No authority to adjust grievances within teams 2. May raise problems with management without making formal grievance II. Issues in Contract Administration a. Discipline i. Demotion, suspension, discharge 1. Meted out for absenteeism, insubordination, dishonesty, rule violations, poor productivity 2. Rule violationssubstance abuse or sexual harassment ii. Dischargegrievance regardless of its merit iii. Last chance agreement (LCA)—in lieu of possible termination for a disciplinary infraction, an arrangement in which an employee, the union, and management agree that another instance of a similar violation will result in immediate termination without access to the grievance procedure b. Incentives i. Paid by the piece or receive bonuses for productive efficiency ii. Establish groups of jobs that work on incentive rates c. Work Assignments i. Which job classification is entitled to perform certain work d. Individual Personnel Assignments i. Most often concern promotions, layoffs, transfers, and shift assignments e. Hours of Work i. Involve overtime requirements and work schedules f. Supervisors Doing Production Work g. Production Standards i. Usually agreed upon, but if management changes the standards, employees must put forth more effort for the same pay h. Working Conditions i. Involve health, safety, and comfort concerns ii. Justified in unilaterally refusing a work assignment if they have a valid reason to believe it could lead to injury i. Subcontracting i. Unless contract allows complete discretion to company in subcontracting, work done by bargaining-unit members may not be subcontracted before bargaining with union j. Outsourcing k. Past Practice i. May not be written into contracts but unions consider to be an obligation l. Rules m. Prevalence of Issues in Grievance Categories i. Pay 17% ii. Working conditions 16% iii. Performance/Permanent job assignments 16% iv. Discipline 14% v. Benefits 14% vi. Management rights 7% vii. Discrimination 6% III. Grievance Procedures a. Steps in the Grievance Procedure i. Know these from notes b. Time Involved i. 2 to 5 days for resolution at first two steps ii. 3 to 10 days at step 3 iii. 10 to 30 days to demand arbitration if management denies a step 3 grievance iv. Average grievance is settled between 10 and 14 days IV. Methods of Dispute Resolution a. Project Labor Agreements i. In construction, an agreement that covers the period during which a project will be undertaken ii. Usually unions agree not to strike and employers agree to hire only union labor iii. Includes dispute resolution procedures b. Grievance Mediation i. Shifts focus from a “who wins” orientation toward a problem-solving mode ii. Grievances headed to arbitration are usually settled with the help of mediation 1. Uncover and deal with the real reason for the conflict 2. SIGNIFICANTLY CHEAPER c. Wildcat Strikes i. An intracontract strike in violation of a no-strike clause ii. Particularly prevalent in coal mining iii. Employer discipline 1. If strike was over ULP and union correctly judged it illegal, strike would be protected and employer could not retaliate 2. If strike was in violation they get in trouble a. Cannot sue individual union members b. If union clearly led this wildcat strike, it may be found in contempt of court and fined V. Employee and Union Rights in Grievance Processing a. To what is the employee entitled? i. Individual Rights 1. Rights under the contract are not clearly established a. Individuals have a vested right to use grievance procedure through arbitration if they choose b. Individuals should be entitled to process grievances for discharge, seniority, and compensation cases c. The union as a collective body should have freedom to decide what constitutes a meritorious grievance and how far the grievance should be pursued 2. SC decisions of fair representation yield these principles a. Employees have right to have contract terms enforced to their benefit b. Employee has no right to insist on a personal interpretation of a contract term c. No individual can require that a union process a grievance arbitration, but each should have equal access to grievance procedures d. Settlement on basis of personal motives by union officials constitutes bad fait e. Individual should have grievance decided on own merits, not traded for other grievance settlements f. While union is entitled to judge relative merit, it must exercise diligence ii. Fair Representation 1. Vigor and equality of the union’s advocacy, not necessarily its competence 2. Able to seek legal redress for employer actions violating civil rights, wage and hour, or health and safety laws VI. Grievances and Bargaining a. Union Responses to Management Action i. May establish precedent for or against union if arbitrated ii. May lead to internal union disputes iii. Upcoming elections may influence resolution rates iv. Union gains bargaining power by shaping employee complaints so that they fit a clear grievance category b. Fractional Bargaining i. A tactic a union might use in contract administration to pressure the employer to make concessions on issues that could not be won in bargaining ii. Each side pressures the other, but some mutual accommodation that enables both to survive is usually reached c. Union Initiatives in Grievances i. Stewards may solicit grievances looking for potential contract violations 1. Appointment ends when award has been rendered and implemented iv. Visibility of arbitrator was the factor most highly related to volume of cases heard v. Sources and Qualifications of Arbitrators 1. Generally from two groups a. Attorneys who are full-time arbitrators b. Academics who teach labor law, industrial relations, and economics 2. There are 3 major sources of arbitrators a. National Academy of Arbitrators i. Includes full-time arbitrators, as well as law school, industrial relations, and economics professors with excellent arbitral reputations ii. Holds meetings and issues proceedings commenting on difficult problems and offering alternative solutions iii. Membership directory provides source of recognized, highly qualified arbitrators that may be requested b. American Arbitration Association (AAA) i. Many contracts specify they use this ii. Does not employ arbitrators, but acts as a clearinghouse iii. Sends a panel of arbitrators (usually 5, always odd number) 1. Parties reject names until one is left iv. Provides reporting or facilities assistance c. Federal Mediation and Conciliation Service (FMCS) i. Maintains roster of arbitrators from which it selects panels ii. Private practitioners iii. No reporting or facilities assistance iv. Requires arbitrators to render awards within 60 days of hearing’s close c. Prehearing i. Review history of case ii. Study entire collective agreement to ascertain all clauses bearing directly or indirectly on dispute 1. Compare current and prior provisions iii. Examine the instruments used to initiate arbitration iv. Talk to all who might be able to aid development of full picture, including diff viewpoints 1. Better understand both cases 2. Anticipate opponent’s casebetter prepare to rebut 3. Interview each of your own witnesses 4. Examine all records and documents relevant 5. Visit physical premise involved to visualize what occurred 6. Consider utility of pictoral or statistical exhibits 7. Consider what parties’ past practices have been in comparable situations 8. Attempt to determine if there is a key point on which the case might turn 9. Prepare a written argument to support your view for interpretation cases 10. Collect and prepare economic and statistical data in interests or contract-writing cases 11. Research parties’ prior arbitration awards 12. Outline your case and discuss it with others in your group d. Hearing process i. May be completely stipulated 1. Arbitrator rules on interpretation of contract given submissions ii. Arbitrator may insist on calling witnesses and examining evidence on site e. Representatives of Parties i. May be advocated by anyone ii. At an advantage when only one side has an attorney f. Presentation of the Case i. Union presents its case first 1. Except in discipline and discharge ii. Management may object to exhibits and may cross-examine witnesses iii. Then it’s the management’s turn g. Posthearing i. Parties may submit briefs supporting their positions ii. Arbitrator studies evidence, takes briefs into account and may examine similar cases to prepare an award and sent it to the parties h. Evidentiary Rules i. Evidence is either direct or circumstantial ii. It is only relevant if it addresses the issue at hand i. Arbitral Remedies i. Grievant makes it known what relief is desired 1. Discipline and dischargeback pay, reinstatement, rescission of demotion or transfer, elimination of reprimands, etc. 2. More difficult casesrestoration of work to bargaining unit, payment of wages forgone by employees who would have been entitled to work, etc. j. Preparation of Award i. Conveys arbitrator’s decision in the case 1. Summary of evidence 2. Reasoning behind decision 3. What action must be taken to satisfy decision IV. Procedural Difficulties and their Resolutions a. Expedited arbitration reduces time delays and costs i. Hear several cases and submit very short written awards ii. Facilitates entry of new arbitrators b. Inadequate representation could be either malicious or inept i. May become aware of differences in quality of representation ii. Is it ethical for arbitrator to take this into account? V. Arbitration of Discipline Cases a. Things like substance abuse, sexual harassment, fighting, work-family conflicts, and e-mail abuse fall into this category b. Punishment serves two basic purposes i. Motivate employees to avoid similar conduct in future ii. By example, to deter others VI. Arbitration of Past Practice Disputes a. Certain practices may not be written in contract but may have been applied so consistently that there is an understanding they will continue b. Eight criteria i. Does the practice concern a major condition of employment? ii. Was it established unilaterally? iii. Was it administered unilaterally? iv. Did either party seek to incorporate it into the body of the written agreement? v. What is the frequency of repetition of the practice? vi. Is the practice of long standing? vii. Is it specific and detailed? viii. Do the employees rely on it? c. If the answers are yes, the condition will likely take on same legitimacy of negotiated benefit VII. Arbitral Decisions and the Role of Arbitration a. To be accepted by parties, neither expects to fare worse in results b. Party with burden of proof wins in 43% of cases c. Agree to use it for unresolvable grievances d. Role of arbitratorto add to the agreement by setting terms to cover one of a number of infinite work situations the parties could not contemplate when the agreement was negotiated