I had a discussion the other day that I haven’t had for quite a few years.
It usually goes something like this: “He’s a manager, but he says he can’t make his employees work because they tell him they have a union.”
This makes me crazy. It’s not true, and it’s not that complicated. Manager’s direct the work as required by job descriptions,and classification assignment within the union contract. Employees perform the work as directed.
Rule #1 is managers keep their right to manage, even when a Collective Bargaining Agreement is in force. You may have to follow certain rules, and you will likely face some limitations on what you can tell people to do, but you still keep the right to manage your business.
Management Rights clauses are contractual clauses found in union contracts that give management the ability to manage its business without interference from the union (except as agreed to).While not all inclusive, below is a listing of typical Management Rights found in union contracts giving management the right to:
Direct, control and assign employees work
To establish schedule and hours of work
Determine qualifications of employees
Discipline employees and terminate employees for cause
Expand and reduce the number of employees
Recall from layoff
Establish and enforce rules of conduct
Consolidate, tranfer, or close its operations
ARTICLE 7—MANAGEMENT RIGHTS
The management of the Employer’s operations and the direction of its employees, including but not limited to the rights: to hire, classify, promote, transfer, lay-off, recall, discipline, discharge for just cause, suspend, direct, control, and determine the qualifications of employees; to maintain order and efficiency and to establish and enforce rules and regulations as well as absentee tardiness policies, safety standards, work loads, and schedules of production; to determine the location and extent of the Employer’s operations and their commencement, expansion, curtailment or discontinuance; to select, introduce, discontinue, eliminate or change equipment, machinery, processes or services; and to schedule and assign work to the employees, shall remain vested exclusively with the Employer.
The above are by way of example only of rights vested exclusively in the Employer and all rights which the Employer would have but for the existence of a collective bargaining agreement, including the rights to continue or discontinue any past practice or benefit, except as specifically modified by this Agreement, are vested in the Employer’s discretion.
In Collective Bargaining, Employers Have to Watch What They Say
This article by Frederick sullivan is one of the most timely and interesting pieces on the mechanics of collective bargaining language that I have seen in a long time. Now more than ever, labor relations practitioners have to think not only about what they say, but how they say it. Between the advent of social media, and the new Obama labor board, labor relations expertise is rapidly moving from old school to the bleeding edge of human resources. Are you keeping up? – MVD
The general council for the National Labor Relations Board (NLRB) recently issued guidelines to the agency’s regional offices on prosecuting unfair labor practice charges against employers that refuse to give information to unions during collective bargaining.
Generally, under existing labor law, a union is entitled to information about the bargaining unit employees’ terms and conditions of employment. But when the requested information involves matters outside the bargaining unit, the union bears the burden of showing the relevance of the requested information to the union’s bargaining responsibilities for its unit members.
Additionally, an employer’s statements or proposals during actual negotiations may make financial or other specific and limited information relevant to negotiations — and, thus, information that the union is entitled to request and to receive. For example, employer statements of an ‘inability to pay’ or ‘cannot afford’ will trigger an obligation to provide financial information if the union requests it.
The general counsel stated that there are no magic words required to create the employer’s obligation to provide financial information. Whenever the employer’s statements and action convey an inability to pay, the obligation is established. Thus, claims of economic hardship, business losses, prospect of layoffs, a matter of survival, or a comment such as, “acceptance of the offer would enable the company to retain your jobs and get back in the black,” in the context of the particular bargaining, have been found to amount to a claim of inability to pay that gives rise to an obligation to provide requested financial information.
The general counsel told NLRB regional directors to distinguish between general claims of inability to pay that give rise to financial information obligations and other, more limited employer claims that can be the subject of a union’s demand for verification. Besides inability statements, an employer may make a statement during bargaining that, according to the NLRB, will give rise to an obligation to provide the union with specific requested information.
For example, when an employer claimed a need to be more competitive, the NLRB ordered the employer to provide the union with competitor data, labor costs, and other information relevant to the claim. General counsel said a union is entitled to information tailored to what allows the union to evaluate specific employer assertions made during bargaining.
General counsel instructed the NLRB regions to analytically distinguish between inability to pay and an employer’s obligation to provide information in response to a specific claim by the employer made during negotiations, e.g., an inability to compete.
This year the NLRB ruled that a union is entitled to specific information regarding an employer’s job-bidding practices because the employer had contended in bargaining that its wages and benefits affected the employer’s ability to get and receive job bids. The NLRB ruled that a union is entitled to information that supports or disproves an employer’s representation.
The general counsel is advising the NLRB’s regional offices to pay close attention to an employer’s words used to support the employer’s bargaining position or used as reasons to reject a union’s proposal. The NLRB is entertaining demands that an employer verify whatever it communicates to the union as the reason for the employer’s position.
Employers need to be very deliberate in how they articulate reasons for their bargaining positions. Loose, unthinking statements can be seized upon by a union to demand all sorts of data and information from the employer. Before using references to costs, competition, etc., the employer should determine if it has data to support its claim and whether it will be willing to provide the information to the union. The current NLRB is moving employers toward a position of having to verify statements that in the past may have been considered part of the bargaining banter.
Now, much more than before, with the current NLRB administration, an employer has to develop a plan for each position that it takes on each proposal and counterproposal. Plus, an employer has to calculate how it will describe its positions and how it will respond, in detail, to union questions about the employer’s reasons so as to avoid giving rise to unintended information obligations. The general counsel’s emphasis on this topic and instructions to the NLRB regional offices constitute a move toward greater power in bargaining for union representatives.
Frederick Sullivan is a founding partner with the Springfield-based firm Sullivan, Hayes & Quinn, which represents employers in labor and employment-law matters; (413) 736-4538.
Do union members get their money’s worth? Not always!
With all the talk about Wisconsin and the potential elimination of collective bargaining rights for state employees there, and about how it is practically a violation of basic human rights if you are not represented by a union, I wanted to write about collective bargaining, and how it can quickly go wrong, and people may not even be aware what happened.
Collective bargaining is a powerful process, and it can be used very effectively when done right. It is nearly worthless when done wrong, or without the full level of attention that the process deserves.
In the late 1990’s, I was a regional HR Director for a company with a sales office and logistics center located in Missouri. This site came into our company as part of an acquisition, and had two separate union contracts. One of the contracts covered over the road drivers and warehouse workers, who were represented by the Teamsters. This particular contract expired shortly after the sale closed, and it was my responsibility to negotiate the new agreement.
As is typical in these things, I wrote a letter to the Teamster Business Agent for our location notifying him of our intent to open negotiations with the intent of achieving a new collective bargaining agreement. A few days later, I get a voice mail message from a guy whose nickname was some sort of bird. I will call him Goose, although I am changing the name to protect somebody. Goose tells me in the voice mail that he is the local president for the Teamsters and he wants to me to call him back to set up a meeting. Status quo, so far, until I return the call, and things get weird from there. The call goes something like this:
Call me Goose
me: ” Hello, is this RJ there?”
Goose: “Yeah, but you can call me Goose. Listen buddy, we need to set up a meeting to get this contract negotiated over there at XYZ.”
me: “Ok, when would you like to get started? I’ll block a few days over the next few weeks.”
Goose: “No, no….we just need one day for this thing. I have a bunch of other more pressing stuff to deal with right now.
me: Ummmmm??? i dunno, Goose.
Goose: “No, trust me, we can do this. Why don’t you come in next Monday, and we will meet for breakfast and get this thin knocked out…?”
Goose: “C’mon, give me a time and place, I have other sh*t to schedule.”
me: “ok, bla bla at blab bl bla for breakfast 7 am”
After this gem of a call, I phone my boss to discuss this turn of events with him. with some trepidation, we agree to proceed with the meeting. I am given a limited bargaining authority: a contract renewal for up to 2 years with no language changes, no pension increases, no changes to health care, and a wage budget of up to .50 cents per year. I am told that if I can get them to agree to a one year deal, that would be preferable.
Leaving money on the table
Armed with this meager bargaining plan, I left the following Sunday evening to drive to the hotel where I will meet Goose at 7 AM the next day. We meet, grab some eggs and bacon from the breakfast buffet and discuss our deal thusly:
Goose: Tell me what you got…..
me: Ha! tell me what you want! I am not just going to lay my deal on the table without knowing something about what you are looking for.
Goose: I told you, I have other contracts to take care of, big places with 500 drivers…i have to get this done today. Just tell me what you got, and we will make it work.
me: (thinking…i am so about to get screwed) Ok. Here it is. We just bought this place, and we don’t know enough about the location to make a long term deal the way you want to do it, so all I have is .35 cents in raises, and an offer of one year for term of agreement, if we can agree there will be no language changes, and no changes to the benefit structure.
Goose: Great! How many times do you want to go across the table on money?
me: Huh? ummmm….twice?
Goose: Perfect! I will see you about 10 am over at your offices. You give a big speech about how much uncertainty there is with location, and then make your first offer right before lunch. I’m gonna yell a little and give you a bunch of crap, and then me and my guys will go to lunch. When we get back, you give me the full offer, and them that is all there is. We’ll sign it around 2 pm, and i can be out of there by 3….
They did exactly that, and the agreement was ratified by an 85% rate a week later.
This was terrible representation by that union rep. He left more money on the table than he obtained, and really never negotiated at all, except to get a maintenance extension. It wasn’t illegal, but it is not the way the process should work. His members certainly didn’t get the value they deserved for the dues money they paid.
Transportation Security Administration employees win right to form union, bargain collectively
Federal labor relations works differently than private sector labor relations
Way back before I started working in Human Resources, I worked for the United States Postal Service as a letter carrier from 1979 to 1986. I learned one helluva lot about bad labor relations during this stint with USPS. I worked there during the years when the term “going postal” became institutionalized in our society as a metaphor for workplace violence. I was a member of the National Association of Letter Carriers, and served as an elected official for a couple of years for a local based out of Royal Oak, Michigan.
I served as a union official because there was a notable abundance of bad management at work in the organization at that time. Being a part of the union leadership offered me a more direct route to making changes to that system than I could make as an employee, even though I freely shared my opinions in that capacity as well. It wasn’t that the union had so much leverage or power. They didn’t have that much at the local level, but it was the best forum available in that system. It was tough to get much of anything done, but we did make a little headway.
I gave it up after one term because I was heading back to school to get my Masters degree in labor relations at Michigan State University, and switch over to the private sector management side.
I have ambivalent feelings about hearing the announcement that TSA employees have been granted the limited right to collective bargaining, which is pretty much what we had at the Postal Service. Agency head John Pistole issued a letter and a Decision Memorandum outlining the rights of 40,000 employees at the TSA to pick a union to represent them and to engage in a limited form of collective bargaining.
According to Pistole, this determination “sets forth a fair labor relations system unique to TSA that will protect TSA’s capability and flexibility to respond to evolving threats, maximize the utilization of TSA resources, and improve performance, employee engagement and professional development.”
My immediate reaction is pretty much “whatever”, not that that anyone involved in this prolonged process cares what I think.
Several groups have heavily vested interests in this decision, and how it plays out.
The TSA employees will get to decide if they want a union or not, and which union it will be.
Two unions, The American Federation of Government Employees and the National Treasury Employees Union have been vying for the right to represent these employees. The winner of that fight is the biggest winner here, since they will be collecting a lot of dues money from the 40,000 potential new members.
President Obama gets some street cred back with labor unions, which will help him in 2012. Republican aren’t so happy, especially Jim Demint.
Sen. Jim DeMint, R-S.C., has also expressed security concerns regarding the possibility of collective-bargaining rights at the TSA. Asked for comment on the upcoming TSA vote, DeMint’s office referred FoxNews.com to prior statements in which DeMint described the unionization of TSA as a “homeland security disaster.”
It is difficult to see how airline passengers benefit in any way from this .
Under the TSA process, collective bargaining will cover specific employment issues but not security policies and procedures. This means that the scope of collective bargaining with a union, if elected, will cover specific employment issues listed in the Determination, including things like:
The performance management process
Awards and recognition process
Attendance management guidelines process
The TSA Determination prohibits bargaining on any topics that might affect security, including things such as:
Security policies, procedures or the deployment of security personnel or equipment
Pay, pensions and any form of compensation
Like I said at the beginning, kind of ambivalent. Oh well, just like the song says, you can’t always get what you want, but sometimes you get what you need. What do you think?
Nobody wins in a strike – no matter what the spin doctors say
Collective bargaining is a complex and often misunderstood process, equal parts economics and politics, theater and conflict resolution.
In Williamson, New York, nearly 300 hundred workers who produce Mott’s apple sauce products for the Dr. Pepper Snapple group have been on strike since late may. This work stoppage has received a lot of attention in the press, often being characterized as a battle of the little guy against the greedy corporate CEO. An article that recently ran in The Nation called “Rotten Apples, Core Values” gives a good overview of many of the issues, although it is has a definite bias towards the labor side of the conflict.
It is easy to romanticize a strike as a David vs. Goliath situation, or as the little people standing up for themselves by “fighting the man”. This plays well for sounds bites, politicians, and the media. The truth is that the potential damage of this type of work stoppage is much more far-reaching, and much less romantic for all those involved, than the sound bites reported by the media make it seem.
here are some of the potential ways in which a work stoppage impacts a community.
Striking workers lose their income, their benefits, and possibly even their jobs if the strike stretches on long enough.
The company, portrayed as calculating and greedy loses production, an experienced workforce, customers, and profits.
The local community can be thrown into disarray since workers no longer have money to spend, and the company is not buying as many supplies or raw materials.
In Williamson, the economic impact of the Mott’s stike could be very high. According to Jim Allen, president of the New York Apple Association, more than 20 percent of apples in New York are purchased by Mott’s, and 160 of the 700 growers sell to the company. “Right now there’s tremendous concern that we’re going to be in trouble in the fall,” Allen said. “If the plant was not to operate, there would be a $100 million loss to the area in a heartbeat.” (from the Nation)
The point here is that no one, not even a completely greed driven company enters this type of a situation lightly. A lot of time and thought, and a great deal of planning goes into preparing for collective bargaining. Strike contingency planning is just one piece of this process. I have created 40 or 5o such plans, and never had to use one.
It is not cheap to operate a plant through a strike, even when you are hiring replacement workers like Mott’s is doing. Many extra costs are incurred during a strike situation, including extra security, the added costs of hiring and training replacement workers, and the real costs of lost productivity. There are also the intangible but real costs of bad publicity, brand damage, and the loss of customer good will. I am not defending Mott’s here, just pointing out that they are spending a lot of money on this situation as well, and are incurring a lot of risk of their own.
A behind the scenes look at collective bargaining
Starting next week, I am going to write a series of posts offering a behind the scenes look at what happens both at and away from the table during collective bargaining. For starters, here is a look at the chronology of how Mott’s and their union came to be locked into a serious and debilitating strike, adapted from the Nation article:
Mott’s opening proposal: $3 per hour wage cuts across the board, eliminating the pension for new employees, reducing the employer match on the 401(k) from 5 percent to 4 percent, and instituting a health care plan with higher co-pays and premiums. In addition, it would have allowed the company to shift workers through titles and wage scales from day to day.
Through 22 bargaining sessions, Mott’s held firm on its proposals until days before the April 15 expiration date of the contract, when DPS said that if the union accepted new terms by the expiration date, it would cut benefits but leave wages untouched. If the union didn’t, the company would declare an impasse and implement a wage reduction of $1.50 per hour.
The union didn’t accept the offer, voting overwhelmingly to authorize a strike if no agreement could be reached.
DPS then made one final pitch: if the union changed its proposal to a wage freeze and benefit cuts for the three-year contract, DPS would settle because it would have shifted the blame for the diminished contract onto the union.
Local 220 walked out, and after its last offer—leaving benefits untouched but accepting a three-year wage freeze, plus a signing bonus—was rejected by DPS on May 21, the union began its strike at 6 am on May 23.
What is your take on this strike – good business or corporate greed? Leave your thoughts in the comments.