Collective Bargaining on the PHR or SPHR Exam

Collective bargaining knowledge is something you need for both the Professional in Human Resources (PHR) and the Senior Professional in Human Resources (SPHR) exams. You need to have knowledge of labor union implications and common law compliance. For the SPHR, you also need some knowledge of labor union avoidance.

Navigating labor union implications

Unions tend to target the baseline needs of employees—job security, better pay and benefits, and safer working conditions. In their early years, these elements were subject to employer discretion, which led to all sorts of horror stories for employees. Now that these bits are actually addressed via labor law (such as the FLSA, PPACA, and OSHA), unions have been in a continual decline. Regardless, the labor laws governing the employer and unions must be understood for the exams.

Understanding compliance

Some days, it feels like all you do in your job is try to figure out how to comply with labor law. Therefore, employee relations includes the ability to navigate an especially complex web of regulations, particularly because it applies to the right of employees to form unions.

Passed in 1935 and enforced by the National Labor Relations Board (NLRB), the National Labor Relations Act (NLRA) gave workers the right to organize, including striking against employers who were treating them unfairly. This act sets restrictions on employers during the union-organizing process, attempting to ensure that workers may collect together unfettered to make a decision about whether to unionize or not. For purposes of this exam, you should understand the two types of lawful strikes protected by the NLRA:

• Economic strike: An economic strike is when employees refuse to work because they want higher wages, shorter working hours, or better working conditions. Economic strikers can’t be discharged, but the employer may replace them.
• Unfair labor practice (ULP) strike: An unfair labor practice strike occurs when workers are protesting a prohibited employer behavior. Prohibited behavior includes the employer threatening or interfering with a worker’s right to organize, or refusing to bargain in good faith. The employer may not discharge or permanently replace ULP strikers.

The NLRB also defines the phrase protected concerted activity, which applies to most American workers whether organized in a union or not. According to the NLRB, concerted activity “. . . is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.”

A few examples of protected concerted activities are:

• Two or more employees addressing their employer about improving their pay
• Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other
• An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions

This describes the collective behaviors of workers that are protected as part of the union organizing activities, and the protection exists for activity that occurs in the workplace, in the parking lot, outside of the workplace, and online, such as through social media.

In 1947, Congress felt compelled to respond to the growing imbalance of power that the unions had gained, so it passed the Labor-Management Relations Act (LMRA). This act focused on defining union unfair labor practices and gave examples of prohibited policies and strikes. These prohibited practices include:

• Wildcat strikes: When workers walk off the job without union authorization to strike, they’re considered to have gone wild, hence the name wildcat strike. The LMRA prohibits these strikes.
• Secondary boycotts: A secondary boycott occurs when employees refuse to work at their company because their company buys from another site that is on strike.
• Jurisdictional strikes: Think of a jurisdictional strike as a territory dispute. These strikes occur when unions are engaged in a turf war over who should be able to represent a group of workers.

The Labor-Management Reporting and Disclosure Act (LMRDA) was passed in 1959, and it created a bill of rights for union members. This bill of rights gave equal status to union members in terms of voicing opinions, and the bill restricted the dues increases to those that were passed by a majority vote of members. The LMRDA was necessary because there was evidence of corrupt union practices that didn’t serve the interests of the union members.

Context matters on these exams. Think about what was going on in 1935 when the NLRA was passed. The effects of the Great Depression were severe, and worker exploitation was the norm. Employees were looking for security and fair treatment. By the time the LMRA was passed in 1947, the unions had used strikes as threats to shut down businesses and were impacting commerce, so Congress responded with a bill to balance the equation. More than 20 years after unions had been officially recognized, the LMRDA was passed in response to reports of corruption among union leadership.

An interesting read on this time of labor organizing is The Hoffa Wars: The Rise and Fall of Jimmy Hoffa by Dan E. Moldea (Open Road Media). Hoffa helped fight for the right to organize as a young man, and as a union leader he engaged in the corrupt practices that led in some part to the protections necessary under the LMRDA. Understanding context should help you solve exam questions that are tied to reasoning.

Union organizing

Regardless of the overall decline of unions, the essence of union organizing has remained fairly constant. The process, along with the various types of unfair labor practices (ULP) that can occur at each stage, looks like this:

• The campaign: A union campaign is similar to a political campaign in that the union and the employer are opponents with the winner decided by a majority vote. The union may contact employees at home or hold offsite meetings to woo employees over to its side, which is accomplished when at least 30 percent of the targeted workers sign authorization cards, authorizing a vote. Campaign strategies include signage, mailers, phone calls, town hall meetings, and propaganda — it’s an intense time for all involved.

For the exams, note the various unfair labor practices that may occur. An employer may not interfere with, restrain, or coerce employees during a union campaign. Examples of prohibited behavior include promising employees benefits if they remain union free, polling employees to determine their support of the union, and photographing or videotaping employees engaged in protected activities.

• Representation election: After 30 percent of the targeted workers have signed authorization cards, a representation election is scheduled. A union ballot (voting card for employees to cast their vote) is created showing the candidates (the union and the employer) petitioning to be the employee representative. The option that receives the most votes of the majority that voted (not number of employees) wins. For this reason, many employers subject to a representation election encourages all affected employees in the bargaining unit to vote.

ULPs that may occur during the representation election include an employer spying on voting activity, threatening employees who vote one way, or trying to bribe workers to vote in the employer’s favor.

• Union certification: The NLRB issues official certification after a successful election. The union is now authorized by the employees to make decisions on their behalf through the collective bargaining process.
• Collective bargaining: Union employees are no longer at-will (see the common law doctrines later in this chapter for more on employment at-will); an employment contract governs them. The union and the employer negotiate the contract, which addresses typical issues such as wages, hours, pensions, seniority, working conditions, and cause for discipline or termination. HR supports this stage by providing the data necessary for contract costing, such as the cost of labor and benefits. The contract also stipulates the length of the contract, grievance procedures (such as arbitration or mediation), and any security provisions desired by the union. A union may file a ULP against the employer during the collective bargaining process if the employer fails to send someone in with the authority to bargain in good faith.
• Ratification: After an agreement has been reached through collective bargaining, the union representatives take it back to the workers who vote whether to accept the terms. A union may be charged with a ULP if it lacks transparency in presenting the final contract to the union members or changes parts of the agreement after the membership has voted to ratify.

A bargaining unit consists of only the employees eligible to be represented by a union. These employees must have shared interests, such as supervision, wages, benefits, physical location, and industry description.

The community of interest doctrine establishes the criteria that must be met in order to be considered a bargaining unit. It states that the proposed members of a bargaining unit have enough shared employment interests that an agent can effectively represent the group without conflict. Supervisors can’t be part of a bargaining unit because they’re considered part of the management team rather than part of the labor. For follow-up, study the NLRB’s definition of a supervisor, which is especially important because there have been several attempts by employers to categorize groups of employees as supervisors (such as nurses) in order to impede their ability to organize.

After the agreement is in place, a union steward, who is both an employee of the company and a union official, is put into place to handle employee grievances. For larger issues, union members may strike against their employer by refusing to come to work.

A special issue for the SPHR: union avoidance

Employers want to avoid union organizing when possible. While in some industries an organized workforce is business as usual, there are some steps SPHR leaders can do to reduce this relationship from developing at their place of work. They include

• Aligning ELR activities with the company mission, vision, and values: Writing polices and activating procedures in alignment with the corporate mission, vision and values (MVV) will help to ensure that employees are on the same page with management. Doing so communicates to an employee that she is part of a bigger picture and encourages a direct line of communication between management and employees. Supporting this link reduces the need for a third-party facilitator.
• Training the supervisors to be a fair and accurate reflection of the MVV: An old saying goes, “Employees don’t leave companies; they leave bosses.” Twisted up a bit, one could argue that employees don’t invite a union in, but rather bad managers open the door. As a result, training supervisors, coaching leaders, and teaching management to model desired behavior is a frontline defense against union organizing.
• Evaluating management and program effectiveness: Soliciting employee feedback isn’t enough. HR must take action. And taking action doesn’t mean giving employees everything they ask for, but rather communicating to employees the information used to arrive at a decision.
• Putting policies to good use: No-solicitation and open-door policies are preventive in nature, but they must be applied judiciously to avoid charges of interference. If you’re taking the SPHR, familiarize yourself with how and why policies can help avoid a positive outcome to a union election.

Remember that so much of HR is about relationships, and any efforts made toward fostering a positive culture will help improve employee job satisfaction. This supports union avoidance efforts in that happy employees generally do not seek out union representation.

Be sure to seek out additional information about utilizing third-party union busters as part of the resistance efforts should a campaign get going at your facility.

Common law doctrines

In addition to the labor code, Employee and Labor Relations deals with employees’ rights granted by law, called statutory rights. Examples include the right to be free from harassment in the workplace and the right to privacy. Added to these laws must be a conversation about common law doctrines. A common law doctrine doesn’t require an act of Congress to have the force of law; it’s based on consistent court interpretations. Because of these court interpretations, HR professionals have to stay up-to-date on new lawsuits and court rulings every year, because the status of HR law changes with each ruling.

More than likely, the PHR and SPHR exams will ask you questions about the common law doctrine of employment at-will (EAW). EAW is the right for either party in employment to terminate the relationship at any time. Employers don’t have to give a reason, and employees don’t have to give notice. The challenges with true EAW come in the form of three exceptions:

• Public policy exception: Employees may not be terminated for engaging in a protected activity. Examples include filing a workers’ compensation claim or refusing to alter employee timecards to avoid overtime payments.
• Good faith and fair dealing: The duty of good faith and fair dealing is simply the expectation that employers should act in a fair manner when making employment decisions. An employer can’t fire an employee under the at-will doctrine to avoid paying a large sales commission or fire an older worker to avoid retirement obligations.
• Implied contract: If an employee has longevity and good performance reviews, an implied contract may exist, which means that the at-will doctrine is no longer in effect, and the employee may only be terminated for cause. Implied contracts have been created by statements from supervisors to the effect of “as long as you do good work, you’ll have a job here for life.”

Formal employment contracts such as ones used for executive leaders and collective bargaining agreements are examples of explicit contracts that negate employment at-will.

Example common law question

The common law doctrine of at-will employment can be defined as:

(A) refusing to hire an individual based on a protected class characteristic

(B) holding the employer liable for the actions of its supervisors

(C) providing an untrue employment reference

(D) being able to terminate an employee at any time, for any reason, unless unlawful

The correct answer is (D). The common law doctrine of employment at-will states that the employer or employee may terminate the relationship at any time, for any reason, unless prohibited by law. Choice (A) refers to unlawful discrimination. Choice (B) is the common law doctrine known as respondeat superior, and Choice (C) is defamation of character or slander.

In addition to common law doctrines, there is another set of laws not passed by Congress that require employer compliance. They’re called executive orders, signed off by the President of the United States. The exam-related executive orders mainly identify classes of protected groups.