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by: Fabiola Bogan


Fabiola Bogan
GPA 3.76

Yunchen Morgan

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Yunchen Morgan
Class Notes
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This 12 page Class Notes was uploaded by Fabiola Bogan on Tuesday October 13, 2015. The Class Notes belongs to MGT 3500 at Louisiana State University taught by Yunchen Morgan in Fall. Since its upload, it has received 78 views. For similar materials see /class/223126/mgt-3500-louisiana-state-university in Business, management at Louisiana State University.

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Date Created: 10/13/15
MGT 3500 Morgan Spring 2011 Final Chapters 12 14 15 Chapter 12 lmpasses and Their Resolution Impasse definition a Occurs when the parties are unable to reach an agreement i Nonoverlapping settlement ranges 1 More difficult to overcome ii One or both parties are unable or unwilling to communicate info 1 Helped by mediation b TaftHartley 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 30day cooling off period 3 Then NMB decides if strikes or lockouts are allowed ThirdParty 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 facetoface 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 Iquot i llmake a dea 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 39 Reducing hostility through focus on bargaining objectives Enhancing understanding of opponent s position iquot 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 facesaving 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 FactFinding 1 Overview a In 19 h 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 TaftHartley emergency disputes 2 FactFinding 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 i Interest Arbitration I 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 39 Employees refuse to work Economic strike called after a contract expires and usually after there is an impasse to pressure the employer to settle on the unions terms iquot Unfair labor practice strikes protests employer labor law violations iv Wildcat strike an unauthorized stoppage during the contract v Sympathy strike occurs when one union strikes to support another union s strike b Strike Votes and Going Out i Usually take strike authorization votes during negotiations to strengthen bargaining power Continuations occur more often than strikes Unions usually require that members participate in strike activities 1 Increase cohesiveness and solidarity of union iv Occur as the collective voice of employees to show employers that workers need not continually comply v Powerful weapon with strong social overtones c Picketing i One of the most noticeable union activities 1 Under LandrumGriffin employees must publicize that they are involved in a labor dispute when they picket or inform the public about the employer or its products and services9recognitional picketing ii Common Situs Picketing 1 The picketing ofa facility used by several employers 2 An action aimed at a single employer may cause unionized employees of other employers to refuse to cross the picket line iii Ambulatory Site 1 Moving a strike from place to place 2 Ruled legal if a Object is currently on secondary employer s site b Primary employer continues to engage in normal business c Picketing is reasonably close to strike object d Picketing discloses dispute with employer not site owner iv MultipleUse Sites 1 Difficult to picket primary employer without disrupting secondary business 2 Peaceful picketing must not interfere with other stores or mall owner 3 Unions have switched to using billboards and the like in a prominent place for potential customers to view them d Slowdowns i Strike incidence has declined ii Slowdowns often involves working to rules 1 Refusal to perform tasks outside job descriptions to follow procedures to the letter and to work overtime e Corporate Campaigns i The union exerts pressure where the employer might be vulnerable to support a collective bargaining objective 1 Corporate investigations for possible regulatory violations linkage of other corporations detailed financial analyses 2 Publicizing items detrimental to employer s interests that support union s demands f Coordinate Campaigns i Simultaneously pressure employer on several fronts occurring instead of a strike or in reaction to a lockout g Employer Responses to Strikes i Shutdowns 1 avoid highly negative consequences for future labor relations 2 Production revenues lost competitors may gear up to take over production ii Continued Operations 1 Continue to operate using supervisors and other nonproduction users 2 Hire strike replacements a Leads to militant action b Strike Replacements and Public Policy i Free to hire replacements for economic strikers this occurrence is low ii Prohibited in Canada because they have found that replacements are very detrimental to overall business iii Contracting Out 1 Arranging for a competitor to temporarily handle the work of striking employees 2 Ally doctrine the principle that employees of a secondary employer do not commit an unfair labor practice by refusing to perform struck work h Rights of Economic Strikers i Strikers may still get their jobs back 1 Unilaterally return and ifjobs or others they qualify for are unfilled 2 Ask for reinstatement after strike s end ii Not required to reinstate employees who commit sabotage and picketline violence i Incidence of Strikes More frequent when costs of disagreeing or parties relative risks have substantially changed since earlier negotiations 1 Procyclical9strikes increase as unemployment falls and inflation rises Employer and union stability and stability in employer s supplier market are associated with lower incidence rates I39I u u iquot and r 39 39 g39 Ifactors are related to strike incidence A variety of U 1 Southern urban and female strike less often 2 Younger members9 more militant iv Public policy has a mixed effect on strikes j Duration of Strikes i Related to a number of variables increasing during lowperforming economic periods ii Median duration for renegotiation strikes is 15 days iii Median duration for intracontract strikes is 3 days iv 13 of strikes are settled on day 1 v Health care is an important trigger for recent strikes IV Boycotts a Appeals to the general public not to purchase struck goods b Seldom used i Great deal of publicity is required ii Customers may not respond unless a clearcut social issue is involved iii Keeping it from becoming a secondary boycott is hard iv Boycott effects do not end as quickly as strike effects c Have little economic effect V Lockouts a Flip side of the strike coin b Used when faced with strikes involving 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 i Multiemployer bargaining units 1 Whipsaw a bargaining tactic in which a union settles contracts sequentially demanding a higher in each g c SingleEmployer 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 debtorinpossession 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 agreedon 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 selfmanaged 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 39 39 39 quot 39 quot 39 rule violations poor productivity 2 Rule violations substance abuse or sexual harassment Discharge grievance regardless of its merit iquot 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 53 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 Production Standards Q 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 bargainingunit members may not be subcontracted before bargaining with union j Outsourcing 7 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 39 Pay 17 ii Working conditions 16 iii PerformancePermanent 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 llwho wins orientation toward a problemsolving 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 SIG NIFICANTLY CHEAPER c Wildcat Strikes i An intracontract strike in violation of a nostrike clause ii Particularly prevalent in coal mining iii Employerdiscipline 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 ofa 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 39 May establish precedent for or against union if arbitrated May lead to internal union disputes iquot iv Union gains bargaining power by shaping employee complaints so that they fit a clear grievance Upcoming elections may influence resolution rates category b FractionalBargaining 39 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 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 Only needs to be BELIEF ii May stockpile grievances as threats or quottradeoffsquot for larger issues iii Stewards who file more grievances resolve them at lower rates and take more time are more frequently reelected with higher margins iv As the relationship between supervisors and stewards matures the process becomes more efficient and effective d Individual Union Members and Grievances i Unionize to exercise a voice in governing the workplace ii Highpaying jobs or those with few opportunities are more likely to use grievance and less likely to be absent or quit iii Younger male minority and bettereducated employees have higher grievance rates iv Grievants more likely to have lower job satisfaction have higher union satisfaction and be active participants in union affairs VII Effects of 39 on r r39 and r r39 a Employees filing two grievances within one rating period received lower performance ratings i Rating not associated with winning or losing b Grievers no more likely to transfer but those with more than one were more likely to be reprimanded and if this happened more than once they were more likely to quit c Frequent grievers do not necessarily have better work outcomes d Higher grievances lower plant productivity i Presence of grievance procedure9higher productivity e Cooperative approaches settle at lower steps and are more positive f Competitive approaches are used more when wanting to establish a precedent Chapter 15 Grievance Arbitration I What is Arbitration a Quasijudicial process in which parties agree to submit unresolved disputes to a neutral third party for binding settlement b Two types i Interests 1 Decides unresolved future decisions ii Rights 1 Interpreting and applying terms of an existing contract I Development of Arbitration a 19259Arbitration Act establishing right to a contract to specify processes used to resolve disputes i No legal requirement to arbitrate private sector labor disputes b Lincoln Mills established arbitration as the final forum for contract disputes i Fed courts enforce collective bargaining agreements ii Award may be enforced by court if either party failed to comply c Steelworkers Trilogy legitimacy and finality of rights arbitration for settling intracontract disputes i Arbitrators not subject to judicial review ii 3 basic protections for arbitration 1 Contractual arbitration clauses require that parties arbitrate unresolved grievances 2 Substance of grievances and arbitrability are determined by arbitrators not courts If an arbitration clause exists unless a dispute is clearly outside contract provisions 5 courts will order arbitration iii Protects a union s right to insist on arbitration and to have awards enforced without court review d 1962 Trilogy i Involves the requirement for arbitrating damages for violating a nostrike clause rather than taking the disputes directly to the federal courts e Additional Supreme Court Decisions on Arbitration in Unionized Firms i Three cases modified and reaffirmed basics of Steelworkers Trilogy ii Company and union couldn t agree on whether disputed case involved contract 1 Union wanted an arbitrator to deal with arbitration but the company wanted courts 2 SC agreed with company a Courts ultimately responsible for deciding arbitrability of contract disputes b Arbitrator s decision is subject to court review iii Arbitrator had reinstated an employee fired for smoking pot 1 Company appealed but was overturned in court as inconsistent with public policy on drug use 2 SC reversed holding that in absence of fraud courts may not review a decision on its merits for errors or fact or for possible contract misinterpretations 3 Must show public policy was well defined dominates interests of eee or eer and has a history or laws and legal precedents to support it iv Case held where a contract has expired and employer takes a unilateral action that had no history under expired contract 1 Eer cannot be compelled to arbitrate where renewal has not been negotiated f NLRB Deferral to Arbitration i Sometimes a dispute involves both a grievance and an ULP charge ii NLRB first held that where a grievance also alleged ULP and arbitration award had been adverse to union the union could not then pursue the ULP charge iii In 1971 NLRB decided to defer pending ULP charge hearings until after arbitration was completed g Exceptions to Deferral i There are limits on deferral ii Employers and unions might still arbitrate discrimination cases if grievance alleged a violation of both contract and law iii In some public sector situations eees are subject to both labor agreement and rules of administrative agencies I Arbitration Procedures a Prearbitration Matters i Contract specifies how an unresolved dispute goes to arbitration ii Request for arbitration must be timely b Selection of an Arbitrator Specified in contract but usually performed by one impartial arbitrator or a tripartite board consisting of company and union reps and an impartial chairperson who all hear the evidence and render an award Permanent umpire an arbitrator named in a contract who hears all cases within his or her area that may come up under the agreement 1 May be more vulnerable when a militant union presents less admirable cases iquot Ad hoc arbitrators are appointed to hear only one case or a set of cases 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 2 c Prehearing dispute 1 iquot Generally from two groups a Attorneys who are fulltime arbitrators b Academics who teach labor law industrial relations and economics There are 3 major sources of arbitrators a National Academy of Arbitrators i Includes fulltime 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 ofarbitrators 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 Review history of case Study entire collective agreement to ascertain all clauses bearing directly or indirectly on Compare current and prior provisions 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 wwwp s eww l l l O39 Better understand both cases Anticipate opponent s case better prepare to rebut Interview each of your own witnesses Examine all records and documents relevant Visit physical premise involved to visualize what occurred Consider utility of pictoral or statistical exhibits Consider what parties past practices have been in comparable situations Attempt to determine if there is a key point on which the case might turn Prepare a written argument to support your view for interpretation cases Collect and prepare economic and statistical data in interests or contractwriting cases Research parties prior arbitration awards 12 d Hearing process Outline your case and discuss it with others in your group 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 crossexamine 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 discharge9back pay reinstatement rescission of demotion or transfer elimination of reprimands etc 2 More difficult cases9restoration 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 workfamily conflicts and email 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 C V m 9957 lt vquot viii v39 Was it established unilaterally Was it administered unilaterally Did either party seek to incorporate it into the body of the written agreement What is the frequency of repetition of the practice Is the practice of long standing Is it specific and detailed Do the employees rely on it If the answers are yes the condition will likely take on same legitimacy of negotiated benefit I Arbitral Decisions and the Role of Arbitration To be accepted by parties neither expects to fare worse in results Party with burden of proof wins in 43 of cases Agree to use it for unresolvable grievances 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


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