Chapter 16 The Supervisor, Labor Relations, and Legal Issues The Legal Landscape Management may be familiar with a particular type of employment discrimination referred to as disparate treatment, in which the employee believes he or she has been treated differently by the employer because of a protected class such as race, color, religion, sex, or national origin. However, many may not know that policies that appear to apply equally to everyone may nevertheless be deemed discriminatory if the applications of those policies statistically impacts one group at significantly higher rate than another. This type of discrimination, known as disparate impact, arises even if the employer did not intend for the policy to affect one group more than another. Employers utilize a measure known as the four-fifths rule to determine whether an employment practice is discriminatory. In 2003, the City of New Haven, Connecticut administered a promotion exam for firefighters seeking promotion to Captain and Lieutenant ranks illustrates how the disparate impact and disparate treatment theories can impact managerial decisions. I. What Are Labor Relations? • A labor union is an organization that represents the collective interest of workers in negotiating with the workers’ employer to achieve economic goals especially increased wages and benefits, shorter working hours, improved working conditions, and both personal and job security. • Even if one is—or expects to be—a supervisor in a nonunion firm, one needs to understand how labor relations affect supervisory activities and relationships because they affect nonunion employers as well as unionized ones. • Labor relations, union-management relations, and industrial relations all refer to the relationship between employers and their unionized employees. • The growth of unionism forced managers to change many of their ways of dealing with employees. • Management’s freedom of choice has been greatly limited by the emergence of unions. II. How Unions Developed in the United States • By the end of the 19th century, the high birthrate, rapid and uncontrolled immigration, concentration of wealth and industry in the hands of a few businessmen, political abuses by some employers, and large numbers of workers in crowded industrial areas led to many abuses against workers. A. Early Union Activities • Labor unions existed in the U.S. as early as 1789, but they were small, isolated and ineffective craft unions of skilled, experienced workers. • To increase their impact, several craft unions joined together in 1869 to form the Knights of Labor. • Because the organization was only moderately successful, a more conservative union, the American Federation of Labor, was formed in 1881. • Under the leadership of Samuel Gompers, the AFL grew, and had great impact, especially during World War I and World War II. B. Period of Rapid Union Growth • During the 1920s and early 1930s, business became so powerful that workers again felt they were being exploited. • Laws were passed in the 1930s that protected workers and forced management to recognize unions. • But some workers had started organizing industrial unions, in which all the workers in a given industry—such as those in iron, coal, and autos—belonged to the same union, whether they were craftsmen, unskilled workers, or clerical employees. • These unions broke away from the AFL in 1936 to form the Congress of Industrial Organizations (CIO). • Union membership grew rapidly until 1945, when 35.5 percent of the workforce was unionized. • After peaking in 1945, union membership declined until 1955, when it reached 33.2 percent of the workforce. • That was the highest point reached in the post-World War II period. • In 1983, the percentage of U.S. workers represented by unions had declined to 20.1% of the U.S. workforce, with17.7 million unionized workers. • By the year 2003, only 13.5 percent of U.S. workers were members of unions, with only 16.3 million unionized workers. • In 2012, membership had declined even further, with unions representing only 14.8 million workers. C. Some Reasons for Declining Union Membership • The economy has shifted from manufacturing jobs, which are relatively easy to unionize, to service work, which is more difficult to organize. • There is a new kind of service worker who is more educated and technologically oriented. • Because of the growing global economy, U.S. firms are under pressure to cut costs in order to compete. • Another problem for U.S. unions is the growing global economy. U.S. firms are under pressure to cut costs to compete, so many employers have become more aggressive in opposing union organizing drives. • There are now many more small business owners than there are union members, and small firms are very difficult for unions to organize. • Finally, unions may have done their jobs too well. Many traditional union issues, such as workplace safety and hours of work, are now the subject of extensive legislation and government regulation. III. Some Basic Laws Governing Labor Relations • The legal basis of union–management relations is provided by the National Labor Relations Act of 1935 (also called the Wagner Act), as amended by the Labor–Management Relations Act of 1947 (the Taft-Hartley Act), the Labor–Management Reporting and Disclosure Act of 1959 (the Landrum-Griffin Act), and others. • This complex set of laws establishes public policy and controls labor relations. A. The Most Important Labor Laws • In this section, we examine why the basic labor laws were passed. • We also point out the important features of these laws and explain how they are administered. 1. The Wagner Act • The National Labor Relations Act (Wagner Act) was passed to protect employees and unions by limiting management’s rights. • It gave workers the right to form and join unions of their own choosing, protected employees’ rights to engage in collective bargaining, and provided both unionized and union-free workers with the right to engage in protected concerted activity for mutual aid and protection. • It also established the National Labor Relations Board (NLRB) and gave the NLRB exclusive jurisdiction to enforce the law. • The act defined unfair labor practices that management could not commit against the workers and the union, such as interfering with workers’ rights to organize. • The act had no provision for unfair practices that the union might commit against workers and management. • One major abuse was that unions could impose requirements as to how employees could get or keep a job. • This abuse rose to prominence with the rise of union security agreements, particularly closed shop agreements. • Under a closed shop agreement, all prospective employees must be members of the recognized union before they can be employed, and all current employees must join within a specified time to retain their jobs. • Under a union shop agreement, all employees must join the union within a specified period—usually 30 days after being hired—or be fired. • In an agency shop, all employees must pay the union dues even if they choose not to join the union. • The maintenance-of-membership clause says that once an employee joins the union, he or she must maintain that membership as a condition of employment. 2. The Taft-Hartley Act • Following World War II, with evidence of abuse of power by some union leaders, Congress passed the Labor–Management Relations Act (Taft-Hartley Act). • Enacted in 1947, this act greatly changed the Wagner Act, making it more evenhanded, so that unions as well as management could be charged with unfair labor practices. • The Taft-Hartley Act prohibited the closed shop agreement, with a few exceptions, and gave states the right to pass laws prohibiting the union shop. • By 2012, 24 states had passed right-to-work laws, which give workers the right to join or refuse to join a union without being fired. 3. Right-To-Work Laws • A state statute that prohibits union shops in the state. Protects the right of employees to join or refuse to join a union without being fired. • The Taft-Hartley Act prohibited the closed-shop agreement, except in the construction and shipping industries. • By 2012, 24 states used Section 14(b) to pass right-to-work laws, that give workers the right to join or refuse to join a union without being fired. 4. The Landrum-Griffin Act • In 1959, Congress passed the Labor–Management Reporting and Disclosure Act (Landrum-Griffin Act) in an effort to prevent corruption and abuse of employees by some union leaders and managers. • It provided an employees’ bill of rights which protects employees from possible abuse by unscrupulous managers and union leaders. B. Administration of Labor Laws • The five-person National Labor Relations Board (NLRB) has the power to enforce the basic labor laws. • The functions of the NLRB are: ○ To oversee the representation process and certify unions as the exclusive bargaining agent for employees ○ To see that unfair labor practices either are not committed or are punished • The specific duties of the NLRB are: ○ To hold an election to establish the bargaining agent for employees of a given firm. ○ To investigate charges of unfair labor practices against the employer or the union. ○ To issue complaints against either management or labor. ○ To prosecute unfair labor practices and determine guilt. ○ To assess fines and prison sentences. ○ To ask federal courts to control activities of both management and labor by citing them for contempt. IV. Union Principles, Objectives, and Methods of Attaining Objectives • Samuel Gompers, the AFL’s first president, identified the following principles on which unionism is based: ○ Strength through unity ○ Equal pay for the same job ○ Employment practices based on seniority • These principles of unionism lead to the practical goals unions have for their members: ○ Higher pay ○ Shorter hours of work on a daily, weekly, or annual basis ○ Improved working conditions, both physical and psychological ○ Improved security, both of the person and of the job • The usual methods they use are: ○ To organize a firm’s employees ○ To become recognized as the employees’ exclusive bargaining agent ○ To engage in collective bargaining ○ To go on strike or threaten to strike ○ To process grievances A. Organizing Employees • First, the union leader must persuade the employees of a firm to organize and join the union. • A union organizer first tries to get the employees to sign a union authorization card, which states that the employee wants the specified union to be his or her bargaining representative. • As a supervisor in a union-free environment, you should be familiar with the basic steps in the union organizing process, as well as steps that should be taken before a union comes calling. 1. Appeals Used by Union Organizers • The technique most commonly employed by union organizers to obtain union recognition is to compare the target company’s practices to items in contracts that the union has with other companies, perhaps in an entirely different industry. • Union organizers appeal to five main desires of employees: ○ Job protection—unions stress that they continually try to ensure that employees have a job—or at least an income—for a lifetime. ○ Interference running—unions assure employees that they will act as their agents in grievances and disputes. They will go to bat for employees, and they claim to have the know-how to protect employees’ interests. ○ Participation in management—unions insist that they can and will give employees a greater voice in deciding the policies, procedures, and rules that affect them and the work they do. ○ Economic gains—higher wages, reduced hours, and better benefits are still at the top of an organizer’s checklist. ○ Recognition and participation—knowing that pro-union workers need and are dependent on attention, sympathy, and support, union organizers promise employees that they’ll have greater recognition and participation through union activities. 2. Things to Do before the Union Calls • Knowing the issues commonly used by union organizers to appeal to unorganized workers, supervisors and other managers can do many things to minimize the chances of employees’ seeking union representation. • The most important ones are: ○ The company and its higher-level managers must pay close attention to supervisors, for they are the key to successful labor relations. ○ Ensure that workers know and understand what benefits the company offers and how they compare to benefits offered elsewhere in the community. ○ Review jobs frequently to see if they need to be upgraded because responsibilities or working conditions have changed. ○ Make sure employee facilities are adequate, safe, well lighted, well ventilated, and reasonably clean. ○ Keep records of good—and bad—performance by employees and have programs for boosting employee performance, loyalty, and morale. ○ Be firm but fair when imposing discipline. ○ Provide a practical release valve, such as a grievance committee, for employee frustrations and complaints. ○ Be alert for any complaints of abuse or favoritism by employees or supervisors. ○ Establish clear lines for two-way communications with all employees. ○ Provide training for supervisors so they understand how to interact with subordinate employees and the importance of being fair to all workers. 3. Additional Precautions for Supervisors • In addition, management should make sure there is nothing in personnel policies and work rules that the NLRB can construe as being anti-union. • A company is obliged to permit solicitation and distribution of literature by union organizers in nonwork areas such as locker rooms and parking lots during non-work times such as breaks or lunch. • Personnel policies that prohibit employees from discussing their wages have been found to violate the Wagner Act because the policies interfere with the ability of workers to work collectively to better their terms and conditions of employment. 4. What the Supervisor Should Do–and Not Do–When the Union Enters • A union tactic frequently used is for the union organizer to meet with the supervisor and hand over signed authorization cards. • If the supervisor touches the cards, it can be construed as acceptance of the union as the workers’ agent – a process known as voluntary recognition. • Supervisors must know that during union organizing the company is required to maintain the status quo; changes in policy or the way policies are enforced may not occur in response to union organizing. • However, because of the fine line between legal and illegal supervisory conduct during union organizing campaigns, most companies hire outside consultants to help guide them through the process and provide detailed training to supervisors on what they can and cannot say and do during the campaign period. B. Becoming Recognized as the Employees’ Exclusive Bargaining Agent • An exclusive bargaining agent is the employees’ representative who has the exclusive right to deal with management over questions of wages, hours, and other terms and conditions of employment. • A “certified” union is one that has won its representation right through the NLRB election process and has the sole right and legal responsibility to represent all of the employees, nonunion members, as well as members, in their dealings with management. • Management may voluntarily recognize the union when presented with authorization cards or some other showing of interest signed by a majority of employees in the proposed bargaining unit. • A secret-ballot election is conducted by the NLRB when requested by the union or the company. • Because legislative efforts to change the unionization process have not been successful, the appointed members of the National Labor Relations Board have proposed modifying its election rules to accomplish through agency rule-making what the elected legislature has been unable to accomplish through changes to statutory law. C. Engaging in Collective Bargaining • Once the union has been recognized as the employees’ bargaining agent, it starts negotiating with management. • Legally, collective bargaining is the process by which: ○ Representatives of the employer and employees ○ Meet at reasonable times and places ○ To confer in good faith ○ Over wages, hours, and other terms of employment • It is a “must” that supervisors be consulted at each step of this bargaining procedure. • If no agreement is reached, an impasse develops. At this point, the three alternatives are: ○ To call in an outside mediator, provided by the Federal Mediation and Conciliation Service, who will bring the parties together and try to help them reach an agreement; ○ To agree to bring the issue to an outside arbitrator, who will make a decision that will be binding on both parties; or ○ For the union to go on strike, or for management to stage a lockout. D. Conducting a Strike or Lockout • A strike occurs when employees withhold their services from an employer to achieve a goal. • The employees tell the public why they are striking by picketing, walking back and forth outside the place of employment, usually carrying signs. • Most union leaders do not like to use the strike, and only a small percentage of the thousands of contract negotiations conducted annually result in strikes. • The threat of a strike is a continuing factor in almost all negotiations. • Management can stage a lockout. A lockout is closing company premises to the employees and refusing to let employees enter to resume work. E. Reaching an Agreement • When an accord is reached, a document is prepared that becomes the collective bargaining agreement or contract among the company, the union, and the workers. • It usually contains clauses covering at least the following areas: ○ Union recognition ○ Wages and benefits ○ Vacation and holidays ○ Working conditions ○ Layoffs and rehiring ○ Management prerogatives or “rights” ○ Hours of work ○ Seniority ○ Grievance and arbitration procedures ○ Renewal clause • Rules are established that should be obeyed by management and the union. • The management rights clause defines the areas in which supervisors have the right to act free from questioning or joint action by the union. V. Living with the Agreement • Once the agreement has been signed, it is binding until it is time to negotiate a new one – usually three or four years later. • The meaning and interpretation of each clause should be reviewed, and the wording of the contract should be clearly understood. A. Supervisors’ Rights under the Agreement • Supervisors should view the agreement as the rules of the game, because it spells out what they may and may not do. ○ To decide what work is to be done. ○ To decide how, when, and where it will be done. ○ To determine how many workers are needed to do the work safely. ○ To decide who will do each job. ○ To instruct, supervise, correct, and commend employees in the performance of their work. ○ To require that work performance and on-the-job personal behavior meet minimum standards. ○ To recommend promotions and pay increases. ○ To administer discipline according to the agreed-upon procedure. • Supervisors need to have a working knowledge of the agreement’s details because the employees and their advocate, the union steward, will be aware of these details. B. The Supervisor and the Union Steward • The union steward, a union member who has been elected by other members to represent their interests in relations with management, is the supervisor’s counterpart. • The steward is the link between the workers and their union and between the union and the company, especially in case of controversy. • The supervisor represents the company and its interests to workers, who play the dual roles of employees of the company and members of the union. • The steward is at the same level in the union hierarchy as the supervisor is in the company hierarchy. C. The Role of Seniority • One of the most basic union principles is seniority, which means that workers who have been on the job the longest get preferred treatment and better benefits. • One of the supervisor’s greatest challenges is to maintain high productivity while assigning work especially preferred jobs and overtime, to the most senior employee, who is not necessarily the most capable worker. • In unionized companies, promotions within positions covered by the agreement are often awarded to the most senior employee, who may or may not be the best person for the job. D. Handling Employee Complaints • Work assignments, promotion decisions, and discipline and discharge decisions lead to most grievances against supervisors. • The grievance procedure is a formal way of handling employees’ complaints. • The grievance procedure will depend on factors such as type of industry, size and structure of the organization, and the type of union. 1. Grievance Procedures • The form and substance of the grievance procedure depend on several factors: ○ The type of industry (the old-line, “smokestack” industries, such as steel, auto, and transportation have the most formal and rigid procedures). ○ The size and structure of the organization (the larger, more highly structured organizations have the most formal and inflexible procedures). ○ The type of union (the older, craft-oriented unions tend to have a highly structured procedure). • There are usually five steps in a formal grievance procedure in a unionized organization. • However, the actual number of steps taken will depend on the number of managerial levels in the organization and whether or not the grievance is submitted to arbitration. • The steps in the grievance procedure are as follows: ○ Step 1: Begins when an employee complains to the supervisor about a presumed wrong. ○ Step 2: The employee goes to the union steward to present a grievance. ○ Step 3: The union committee person or business agent tries to resolve the complaint with middle management. ○ Step 4: The union president and the chief executive officer try to resolve the difference. ○ Step 5: If they cannot resolve the grievance, it is submitted to outside arbitration. E. Complaint Procedures in Nonunionized Organizations • Many nonunion organizations have formal complaint procedures that are comparable to the formal union grievance procedures. • Historically, these procedures in union-free companies did not, however, provide for arbitration. • However, because of the increasing risk of employment-related lawsuits and the rising costs associated with those lawsuits, many union-free companies have begun including mandatory arbitration provisions in their personnel policies, requiring employees to utilize alternative dispute resolution procedures, such as arbitration, to settle any disputes arising from the employment relationship. F. Caution Needed in Terminations • At one time, supervisors at one time had the right to terminate employees without having to show cause or even give a reason. • Today’s supervisors must offer a valid, documented reason for such discipline and discharge decisions whether they are in a union or union-free workplace. G. Labor Law for the Supervisor in a Union-Free Workplace 1. Concerted activity • First, supervisors are the company’s first line of defense when it comes to union organizing. • It is critical that supervisors know what rights their employees have under the labor laws and know what their role is in protecting those rights. • Second, the federal labor law does apply to union-free workplaces. • In particular, supervisors need to know that the Wagner Act provides protection for concerted activity. ○ Protected concerted activity involves one or more workers taking action for the mutual aid or protection of the group. VI. Complying With Equal Employment Opportunity (EEO) Laws • Most employees in the modern workplace – including men and whites -- are protected by one or more laws limiting the ability of a supervisor to terminate an employee “at-will.” • This section examines some of the federal regulations and court decisions, and their effects on recruiting and selection, as well as discipline and discharge. A. The Most Important EEO Laws • Federal legislation prohibits discrimination based on race, color, religion, sex, or national origin in all employment practices. • There are also additional laws that protect the people with disabilities, older workers, and veterans. B. Enforcement of EEO Laws • The Equal Employment Opportunity Commission (EEOC) is the primary agency enforcing the EEO laws. • The EEO receives and investigates charges of discrimination, issues orders to stop violations, and may go to court to enforce its decrees. • One method used to combat the present effects of past discrimination is affirmative action programs (AAPs). • In essence, an organization, through an AAP, promises to do the following: ○ Make good-faith efforts to recruit from diverse groups, which include women, African-Americans, Hispanics, Vietnam-era veterans, Native Americans, persons with disabilities, and older workers, through state employment services. ○ Limit the questions that are asked of applicants during interviews and on their application forms. ○ Set goals and timetables for hiring the protected groups ○ Avoid testing applicants unless the tests have been statistically evaluated to show the test is valid and job related. 1. Types of Discrimination • Unlawful discrimination generally takes one of two forms—disparate treatment and disparate impact. ○ Disparate treatment requires the complaining person to show he or she suffered an adverse employment action such as a failure to hire or a termination because of his or her protected class (race, color, religion, gender, national origin, age, disability-status, veteran’s status, military obligations, etc.). ○ The other form of discrimination is disparate impact discrimination, which arises when an employer’s policies or practices are facially neutral—they look like they apply to everyone equally – but when the policies or practices are applied, they statistically impact one group at a statistically higher rate than another. VII. Harassment in the Workplace • Companies must take measures against sexual harassment and regularly communicate their policies about it. • In 1999 the U.S. Supreme Court ruled that “victims of workplace sex discrimination can win punitive damages from employers even if the boss’s behavior was not ‘egregious.’” • Federal law now permits victims of workplace bias to recover punitive damages in addition to any actual losses. • The EEOC’s Guidelines on Discrimination Because of Sex defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other physical or verbal conduct, by a member of either sex, when such actions result in one of several consequences. • Those consequences are as follows: ○ Submission to the conduct is made, either implicitly or explicitly, a condition of employment. ○ Submission to, or rejection of, the request(s) is used in making employment decisions involving the employee. ○ The purpose or effect of such conduct is to unreasonably interfere with the employee’s work performance or create a hostile, offensive, or intimidating work environment. • Supervisors and their managers should take strong, quick, and positive measures to discourage sexual harassment because employers are responsible for such harassment by, or of their employees. • Today, sexual harassment litigation is a big business, with thousands of cases filed annually at the EEOC. 1. Accommodating Religious Beliefs • An often costly mistake by supervisors is to overlook the employer’s duty under Title VII to provide reasonable accommodation for sincerely-held religious beliefs. • Under Title VII, religion is more than just protection for the traditional organized religion; it also protects and requires accommodations for a variety of other non-traditional religious, ethical and moral beliefs. 2. Accommodating Qualified Individuals with Disabilities • The Americans with Disabilities Act requires employers to make reasonable accommodations for applicants and employees with physical or mental impairments that substantially limit major life activities. • Accommodations are not considered reasonable if they place an undue hardship on the employer or would require an employer to violate a collectively bargained seniority system. VIII. Workplace Violence • In 2005, a Bureau of Labor Statistics survey revealed that almost 5% of the 7.1 million private businesses in the United States had had at least one incident of workplace violence in the prior 12 months, and half of businesses with 1,000 or more employees had at least one violent incident. • Violence at work may occur for a variety of reasons, including prejudice and discrimination, work-related stress, personality differences, and non-work-related personal problems such as domestic violence. IX. Other Legal Issues • Some other important supervisory responsibilities need to be explained, including employee benefits, the comparable worth issue, and other factors affecting wage rates. A. Legally Required Benefits • Employers are required by law to provide all employees with Social Security and Medicare, workers’ compensation, and unemployment insurance. • Also, some employers must provide certain employees with family and medical leave. • Others will be required to provide health insurance or face penalties under the Patient Protection and Affordable Care Act of 2010. 1. Social Security and Medicare • One part of the Social Security system provides retirement benefits for workers; the other provides disability, survivors’, and Medicare benefits. • To be eligible, a worker must have contributed taxes into the system for 10 years. • Benefits are financed by a payroll tax paid by both employer and employee. • Retirees’ benefits are subject to frequent Congressional changes. • The Social Security tax rate (in 2009) is 6.2% paid by both employees and employers; an additional 1.45% Medicare tax on all earnings paid by both the employer and the employee. 2. Workers’ Compensation • All states have laws to protect employees against loss of income due to accidental injury or illness resulting from the job. • Workers’ compensation is funded through employer contributions to a statewide fund. 3. Unemployment insurance • Unemployment insurance laws require that the government provide unemployed workers with benefits from a fund of payroll taxes imposed on employers. • The amount paid into the fund by employers varies according to the state unemployment rate and the employer’s record of unemployment or experience rating. 4. The Family and Medical Leave • The Family and Medical Leave Act of 1993 requires employers to offer employees unpaid leave (with limitations) for up to 12 weeks for: ○ Birth of a child ○ Placement of a child for adoption ○ Caring for a spouse, child, or parent with a serious health condition ○ Employee’s serious health condition • The Act was amended in 2008 to add special leave entitlement to permit eligible employees who are the spouse, son, daughter, parent, or next of kin of a service member–National Guard, Reserves, or Regular Armed Forces–with a serious injury or illness incurred in the line of duty to take up to 26 workweeks of FMLA leave during a single 12-month period to care for their family member (military caregiver leave). • It also allows eligible employees whose spouse, child, or parent is called up for active duty in a foreign country to take up to 12 workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member (qualifying exigency leave). B. The Comparable Worth Issue • Despite the Equal Pay Act women are often still paid substantially less than men for similar jobs. • The real question is: Are women being systematically underpaid for work that requires the same skills, knowledge, and responsibility as similar jobs performed by men or are there legitimate, nondiscriminatory reasons for the remaining pay gap? • Advocates say the solution lies in a system of comparable worth, or pay equity, in which a formula is used to assign points for the amount of education, effort, skills, and responsibility required for an individual job. C. Factors Affecting Wage Rates • What most employers think they should pay is “competitive wages,” but some specific factors affect what they actually pay. • Two important factors affecting wage rates are government factors and collective bargaining. 1. Governmental factors • The Fair Labor Standards Act (Wage and Hour Law) covers all employees, working in interstate commerce, all federal employees, and some state employees. • The FLSA requires employers to pay at least the minimum wage for all hours worked and to pay most employees at least 1 ½ times their regular rate for hours worked beyond 40 in the same workweek, better known as overtime. • One of the biggest issues in many of the wage and hour cases is whether the complaining employee is even entitled to the protection of the law. • Some employees, referred to as exempt employees, including executives, administrators and professional employees, outside sales personnel, and other selected groups, are not covered by all provisions of this law. • The job duties of exempt employees are duties that do not neatly fit within a 40 hour workweek and for which it would be difficult to substitute one employee for another at the end of 40 hours of work. • The FLSA also prevents child labor by making 14 the minimum working age for most nonfarm jobs and limiting work hours for other young workers. • The Davis-Bacon Act and the Walsh-Healey Act impact the wage rates that must be paid by private business that have certain types of contracts with the federal government. • These acts differ from the Fair Labor Standards Act in two aspects. • First, the actual rate of pay is set by the Secretary of Labor. This rate of pay is called the prevailing wage rate in the area and approximates the union wage scale for the area in the given type of work. ○ A second difference is that overtime is paid at “time and a half for all hours worked over 8 hours in a given day as well as over 40 hours in a given week. • Public policy now prohibits discrimination in pay unless it is based on job-related factors such as performance or experience. • For example: ○ The Equal Pay Act prohibits different rates of pay for men and women doing the same type of work. ○ Title VII of the Civil Rights Act prohibits discrimination based on race, color, religion, sex, or national origin. ○ The Age Discrimination in Employment Act prohibits discrimination against persons 40 and older. ○ Vocational Rehabilitation Act and Americans with Disabilities Act prohibit discrimination against persons with handicaps. 2. Collective Bargaining • When unions are involved, basic wages job differentials, individual rates of pay, and employee benefits tend to be determined through the collective bargaining process. • Benefits commonly provided in union agreements include health insurance, life insurance, pension or other retirement benefits, disability benefits, sick leave, bereavement leave, and vacation or other paid time off. • Even nonunionized employees are affected by the wage rates and benefits paid by unionized firms because to remain competitive in the labor market union-free employers often offer wages and benefits similar to those required by collective bargaining agreements in the recruiting area. • At this time it is not completely clear how the various employer-related provisions of the Patient Protection and Affordable Care Act (“PPACA”) will impact the supervisory function. ○ However, we do know that under the PPACA, employers are now required to provide breaks to nursing mothers to express breast milk for the first year after the child’s birth and provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” XII. Chapter Review The PowerPoint slides correlated with the Lecture Outline above are available on the Instructors CD-ROM and on the product support website. PowerPoint Slide 16-1 Chapter 15 Title PowerPoint Slide 16-2 Learning Objectives PowerPoint Slide 16-3 Learning Objectives (cont’d) PowerPoint Slide 16-4 Labor Relations PowerPoint Slide 16-5 Development of Unions in the United States PowerPoint Slide 16-6 Decline of Unions in the United States PowerPoint Slide 16-7 Basic Laws Governing Labor Relations PowerPoint Slide 16-8 Unfair Practices PowerPoint Slide 16-9 Right-to-work Laws and Employees’ Bill of Rights PowerPoint Slide 16-10 Rights of Employees (Text Exhibit 16-4) PowerPoint Slide 16-11 Unfair Labor Practices of Unions (Text Exhibit 16-5) PowerPoint Slide 16-12 Unfair Labor Practices of Employers (Text Exhibit 16-6) PowerPoint Slide 16-13 National Labor Relations Board (NLRB) PowerPoint Slide 16-14 Union Principles and Objectives PowerPoint Slide 16-15 Methods of Attaining Objectives PowerPoint Slide 16-16 Steps in the Union Organizing Process PowerPoint Slide 16-17 Steps in the Union Organizing Process (cont’d) PowerPoint Slide 16-18 Organizing Employees PowerPoint Slide 16-19 Organizing Employees (cont’d) PowerPoint Slide 16-20 Things Supervisors May Do when a Union Tries to Organize their Company PowerPoint Slide 16-21 Things Supervisors May Do when a Union Tries to Organize their Company (cont’d) PowerPoint Slide 16-22 Becoming Recognized as the Employees’ Exclusive Bargaining Agent PowerPoint Slide 16-23 Engaging in Collective Bargaining PowerPoint Slide 16-24 Conducting a Strike or Lockout PowerPoint Slide 16-25 Collective Bargaining Agreement or Contract PowerPoint Slide 16-26 Supervisors’ Rights under the Agreement PowerPoint Slide 16-27 Union Steward, Role of Seniority, and Grievance Procedures PowerPoint Slide 16-28 Typical Grievance Procedure in a Unionized Organization (Text Exhibit 16-11) PowerPoint Slide 16-29 Legal Influences on Equal Employment Opportunity and Affirmative Action PowerPoint Slide 16-30 Legal Influences on Equal Employment Opportunity and Affirmative Action (cont’d) PowerPoint Slide 16-31 Legal Influences on Equal Employment Opportunity and Affirmative Action (cont’d) PowerPoint Slide 16-32 Equal Employment Opportunity Commission (EEOC) PowerPoint Slide 16-33 Types of Discrimination PowerPoint Slide 16-34 Sexual Harassment PowerPoint Slide 16-35 Legally Required Benefits PowerPoint Slide 16-36 Should Jobs of Comparable Worth Receive Comparable Pay? (Text Exhibit 16-13) PowerPoint Slide 16-37 Governmental factors Affecting Wage Rates PowerPoint Slide 16-38 How Collective Bargaining Affects Wage Rates PowerPoint Slide 16-39 Important Terms 1. Define labor relations. Labor relations, union-management relations, and industrial relations all refer to the relationship between an employer and unionized employees. 2. When did unions grow the fastest? Why? Union membership grew fastest in the 1930s through the mid-1940s. This rapid growth was due, in part, to the passage of laws favorable to workers, such as the Wagner Act. Other factors were the increased demand for workers because of World War II and the prosperity that followed that war. 3. Why has union growth slowed? What can unions do to appeal to younger workers entering the workforce? There are many reasons for declining union membership. The older smokestack industries, such as coal mining, steel, and automaking, which were open to easy unionizing, have already been organized. There has also been a shift in the economy from manufacturing jobs to service work, which is harder to organize. Also, there is a new kind of service worker who is more educated and technologically oriented. Because of the growing global economy, U.S. firms are under pressure to cut costs in order to compete. This is creates resistance to unionization activities. There has also been growing emphasis on part-time and temporary workers. In addition, the growth of small business is working to discourage union membership. The decline in union membership is partially due to the passage and enforcement of laws to protect employees. 4. Do you believe that union power will increase or decrease in the future? Why? Students will have individual opinions on this, but do make them defend their answers. 5. Name the laws that form the legal basis for labor relations, and explain their general provisions. The major laws that form the legal basis for union-management relations are the National Labor Relations Act (Wagner Act) of 1935, as amended by the Labor-Management Relations Act (Taft-Hartley Act) of 1947, and the Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act) of 1959. The Wagner Act was passed to protect employees and unions by limiting management’s rights. It gave workers the right to form and join unions of their own choosing and made collective bargaining mandatory. It also set up the National Labor Relations Board to enforce this law. The Act defined specific unfair labor practices committed by management against the workers and the union. However, there was no provision for unfair practices committed by unions against workers and management. The Taft-Hartley Act of 1947 changed the Wagner Act by making it more evenhanded—unions could be charged with unfair labor practices. The Act prohibited the closed shop agreement and gave states the right to pass laws prohibiting the union shop. It also set up methods to deal with strikes affecting national health and safety. In 1959, Congress passed the Landrum-Griffin Act, which provided an employees’ bill of rights that protects employees from possible abuse by some unscrupulous managers and union leaders. It also requires financial disclosures by unions. 6. What are the differences among the union shop, the closed shop, and the agency shop? Are these differences really significant? Explain. How do right-to-work laws impact the ability of unions to demand union shop clauses in collective bargaining agreements? Under a union shop agreement, all employees must join the union within a specified period, usually 30 days, or be fired. Under a closed shop agreement, all prospective employees must be members of the union before they can be employed. In an agency shop, all employees must pay the union dues even if they choose not to join the union. These differences are very significant. In a union shop, management employs the people it chooses, and these people must become union members. Under a closed shop agreement, management must accept the workers sent by the union. The agency shop allows employees to remain nonmembers, if they wish, but the union still receives the financial support of every worker, just as it would under one of the other types. The right-to-work laws impacts the ability of the unions to demand union shop clauses in collective bargaining agreements as the right-to-work laws protects the employees’ right to either join or refuse to join a union without the fear of being terminated. 7. What are some “unfair labor practices,” and what are some unfair labor practices that management sometimes commits? Unfair labor practices of employers include the following: • To interfere with, restrain, or coerce employees using their rights under the law • To dominate or interfere with the forming or administering of unions, or to contribute support to them • To discriminate in hiring or in any other terms of employment in such a way as to encourage or discourage membership in a union • To discharge or otherwise discriminate against employees for filing charges against the employer or testifying under the law • To refuse to bargain with the union representative 8. What are some unfair labor practices that unions sometimes commit? Unfair labor practices of unions include the following: • To coerce employees into, or restrain them from, engaging freely in union activities • To force management to discriminate against employees in violation of the law • To refuse to bargain in good faith • To require managers to pay money for work not done • To engage in a strike or boycott to force management to commit illegal acts • To charge excessive initiation fees and dues where there is a union shop 9. What are the primary objectives of unions? The primary objectives of unions are higher pay; shorter hours of work on a daily, weekly, or annual basis; improved working conditions, both physical and psychological; and improved security, both of the person and of the job. 10. What are the methods used by unions to achieve their objectives? Unions achieve their objectives by the following methods: organizing a firm’s employees, becoming recognized as the employees’ exclusive bargaining agent, engaging in collective bargaining, going on strike or threatening to strike, and processing grievances and arbitration. 11. What provisions are usually included in a labor agreement? A typical labor agreement usually contains clauses covering at least the following areas: union recognition, wages, vacations and holidays, working conditions, layoffs and rehiring, management prerogatives, hours of work, seniority, arbitration, and renewal clause. 12. Describe the typical grievance procedure. There are usually five steps in a formal grievance procedure. • Step 1 begins when the employee complains about a presumed wrong to the supervisor. • In Step 2, the employee goes to the union steward to present a grievance. • In Step 3, the union committee person or business agent tries to resolve the complaint with middle management. • In Step 4, the union president and the chief executive officer try to resolve the difference. • In step 5, the grievance is submitted to outside arbitration if it cannot be resolved. 13. Why have union-free employers begun implementing grievance procedures, including mandatory arbitration, traditionally found only in unionized workplaces? Many nonunion organizations use formal complaint procedures that are comparable in many ways to the formal union grievance procedures because it permits complaints to go beyond the supervisor to committees composed of higher-level executives, including the human resources manager and sometimes even top executives. Union-free employers have begun implementing mandatory arbitration because of the increasing risk of employment-related lawsuits and the rising costs associated with those lawsuits, many union-free companies have begun including mandatory arbitration provisions in their personnel policies, requiring employees to utilize alternative dispute resolution procedures, such as arbitration, to settle any disputes arising from the employment relationship. 14. Why has “termination at will” declined as a management tool? Supervisors at one time had the right to terminate an employee in a nonunionized company “at will,” that is, without having to show cause or even give a reason. Subsequent legislation, union bargaining, and court decisions have largely eliminated that practice. Now an employer must offer a valid, documented reason for such action. 15. What are the protected classes under federal employment discrimination laws? Are white men protected? Why or why not. The Equal Pay Act prohibits pay discrimination between men and women. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, gender (including pregnancy), and national origin in the terms and conditions of employment, and requires employers to provide reasonable accommodation for religious beliefs. The Age Discrimination in Employment Act prohibits employment-related discrimination against individuals who are 40 and older. The Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities, as well as individuals who are perceived as disabled, have a history of a disability, or who are associated with individuals with disabilities. The Immigration Reform and Control Act prohibits discrimination on the basis of citizenship. Veterans also receive special protection from discrimination under federal law. In addition many state and local governments have laws prohibiting discrimination on a variety of other grounds including sexual orientation, gender identity, marital status, and appearance. Yes, white men are protected under these laws as they do fall under the classes that are protected by the federal employment discrimination laws. 16. How do EEO laws affect recruiting and selecting of employees? All aspects of selecting and appraising employees are affected by Equal Employment Opportunity laws. Federal legislation such as the Civil Rights Act of 1866, the Civil Rights Act of 1964, Executive Order 11246, the Civil Rights Act of 1991 and other legislation prohibit employment decisions based on race, color, religion, sex, or national origin. Other laws provide protection for older workers, women, persons with disabilities, and Vietnam era veterans. These laws encourage affirmative action programs to put the principle of equal employment opportunity into practice. 17. What is the difference between disparate treatment discrimination and disparate impact discrimination? Disparate treatment discrimination is said to have taken place when an employee believes he or she has been treated differently by the employer because of a protected class such as race, color, religion, sex, or national origin; whereas, disparate impact discrimination takes place when policies that appear to apply equally to everyone may nevertheless be deemed discriminatory if the applications of those policies statistically impacts one group at significantly higher rate than another. Disparate impact arises even if the employer did not intend for the policy to affect one group more than another. 18. What is the role of the supervisor in helping the employer defend claims of disparate treatment? The employer’s best defense to a disparate treatment class is showing that the employer was motivated by a legitimate, non-discriminatory business reason. In other words he employer did what it did for reasons other than the protected class. The supervisor’s frequently play a key role in this defense. If involved in the hiring process, supervisors must be able to explain clearly why one candidate was a better fit for a job than another candidate. If involved in discipline or discharge decisions, the supervisor must be able to explain what the person did that result in discipline or discharge. Documents created by supervisors such as warning letters and performance evaluations are often important pieces of evidence in disparate treatment cases. 19. What steps should employers take to reduce the risk of sexual harassment in the workplace? Supervisors and their managers should take strong, quick, and positive measures to discourage sexual harassment because employers are responsible for such harassment by, or of their employees. Such measures should include express declarations against sexual harassment that are regularly—and clearly—communicated to all employees, and those statements should be quickly and effectively implemented. Also, internal procedures for conducting immediate, thorough, and impartial investigations should be well established and publicized. 20. Name and describe the four legally required employee benefits. The three legally required employee benefits are Social Security, workers’ compensation, and unemployment insurance. Social Security and Medicare. The Social Security system is composed of two parts. One part provides retirement benefits, and the other provides disability, survivors’, and Medicare benefits. Benefits are financed by a payroll tax paid by both employer and employee. Workers’ Compensation. All states have passed workers’ compensation laws protecting employees and their families against permanent loss of income due to accidental injury or illness resulting from the job. Benefit payments are made whether or not the fault was the employer’s or the employee’s. Workers’ compensation funds are primarily provided through employer contributions to a statewide fund. Unemployment insurance requires that states provide unemployed workers with benefits from a fund of payroll taxes imposed on employers. The amount paid into the fund by employers varies according to the state unemployment rate and the employer’s record of unemployed workers. Family and Medical Leave. The Family Leave Act of 1993 requires employers with 50 or more employees to offer employees up to 12 weeks of unpaid leave in specific situations. Skill Builder 16.1 The Legal Landscape Works with SCANS competencies: Information • Refer to the chapter preview to assist students when answering the following question: Were the City of New Haven’s business practices discriminatory? • Using the Internet, find the following journal article: Soloman, Suzanne and Cynthia O’Neill. (2009) Employment Testing: Avoiding the Pitfalls of Ricci v. Stefano. CPER Journal, 197, 5-9. • Type a one- to three-paragraph summary of the court’s decision regarding the City of New Haven case and turn it in to your teacher. Students’ summary of the court’s decision should be consistent since they are providing a summary of the action taken. It might be interesting to discuss in class if the students agree with the decision and why. Skill Builder 16.2 Social Media in Today’s Workplace Works with SCANS competencies: Information, Systems, Technology After reading the situation given in the text, ask your students to answer the following questions using the information found in the U.S. Chamber of Commerce’s Report “a survey of social media issues before the NLRB,” http://files.ali-aba.org/files/coursebooks/pdf/VCT1017_chapter_02.pdf. • What should you do in this situation? • Should your company have a social media policy governing what employees can post on social media sites about the company or its employees? Are there limits on what can be prohibited? Students’ answers will vary here since these questions ask for opinions. Make sure the students have a reason for their answers. Case 16-1 United States Freight Group 1. From a management perspective, why did the company allow the initial childish behavior (coffee on the seat, spit on the steering wheel, etc.) to escalate into employee confrontation. The incidents escalated, starting with “childish” behavior, and then turning violent. From the management perspective, it was easy to be lulled into ignoring the growing threat. However, that doesn’t change the fact that management completely misread the developing confrontation, failing to recognize or deal with a disturbed employee. 2. When does childish behavior become a harassment issue? At what point does one’s practical jokes or intimidating actions toward one employee impact all employees? Behavior becomes harassment when employees perceive their workplace to be unsafe. 3. Visit the Occupational Safety & Health Administration’s Website and review the agency’s “Fact Sheet” on workplace violence (http://www.osha.gov/OshDoc/data_General_Facts/factsheet-workplace-violence.pdf). What kind of policy statement and/or plan should the company include in its overall policy and procedures manual to avoid violence in the workplace? What type of training should the company provide all employees on this issue? Above all, the company needs to better address employee concerns. Open communication with supervisors and management could provide an early warning system for brewing employee disagreements. 4. What additional legal issues does this case problem raise for USFG? Regulatory and case law on workplace violence are still developing. The company may be sued by one or more employees for harassment, maybe other liabilities. 5. Would USFG face potential liability if it fired A.J. based on the rumored threats of violence? USFG definitely needs to talk with its legal counsel. If A.J.’s deteriorating behavior has been well-documented, the company probably has grounds to fire him. 6. The National Rifle Association is lobbying for states to pass laws that would prohibit employers from stopping an employee from bringing a gun to work in the employee’s car. As of June 2013, 20 states had enacted “bring your gun to work” laws, including Oklahoma. The Oklahoma statute gives employees the right to keep guns locked in their cars. Other bills are being modeled after the Oklahoma statute. Many employers and business groups oppose the law. Discuss this with your students. Instructor Manual for Supervisory Management: The Art of Inspiring, Empowering and Developing People Donald C. Mosley, Paul H. Pietri 9781285063003
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