PART TWO: THE COLLECTIVE BARGAINING PROCESS
CHAPTER 4: ESTABLISHING A BARGAINING UNIT AND THE ORGANIZING CAMPAIGN
LABOR NEWS: UPS FREIGHT WORKERS PEACEFULLY JOIN TEAMSTERS
CHAPTER 4: OUTLINE
I. Bargaining Unit Determination
A. Appropriate Unit
1. NLRB given power to determine an appropriate unit of employees for collective
bargaining.
2. In determining appropriateness, NLRB looks at whether employees have a
substantial mutuality of interest in wages, hours, and working conditions.
3. Bargaining unit defined:
4. Criteria to determining an appropriate unit (see Case 4.2)
a. Community of interests. Similarity of job function and earnings,
2004.
b. History of bargaining. Prior bargaining relationships are favorably
considered.
c. Employee wishes. Globe doctrine states NLRB is to give weight to
employee wishes.
d. Employee unionization.
e. Unit and Employer Organizational Structure.
f. Public Interest.
g. Accretion. This doctrine allows the NLRB to add new classes of
B. Types of Units
2. Department Unit. Members of one department.
3. One Employer, Multiple Locations. Stores, plants, or facilities of one employer
6. Residual Units. Employees who do not fit in any other unit.
8. Health Care Institutions Units (Eight Units). Physicians, RNs, other
professionals, technical employees, business office clerical employees, skilled
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II. Union Structure
A. Types of Unions
1. Craft unions—workers organized in accordance with craft/skill.
a. Seeks to organize all practitioners of a trade employed by a certain
employer or in a specified geographical area.
2. Industrial unions, mostly unskilled laborers, organize workers at one workplace,
regardless of job.
a. Elected officials administer work of local union.
B. Levels of Unions
1. Local Unions
2. Local Officers
3. National (International) Unions
4. Intermediate Organizational Unit
a. Regional/district bridge between national and local
5. Federation of Unions
a. AFL-CIO is largest and serves as a national spokesperson for labor
6. Change to Win
7. Independent Unions
a. Unions not affiliated with national or international unions.
III. Bargaining Unit Determination in the Public Sector
A. Federal level determined by Federal Labor Relations Act. The FLRA rules on appropriate
units even at NLRB.
B. Test used to determine is the “community of interest” test.
1. Common skills
2. Similar working conditions
C. Professionals at federal level are excluded from nonprofessional units unless they
approve their own inclusion.
D. At state level, process varies on determination of appropriate unit.
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2. Size of unit is often an issue at local level.
IV. Public Sector Unions
A. National Education Association (NEA), began 1906, largest professional organization in
V. The Organizing Drive
A. The Organizing Process (Figure 4-3)
1. Workers may initiate contact with union or union may contact workers.
3. Management’s goal often is to keep union out of the workplace.
4. Can involve voluntary recognition of union, but is usually an election.
B. Union Organizing Strategies
1. Steps in a campaign include an organizing committee, determination of issues of
concern, choosing union recognition strategy, holding an election.
3. Salting becoming a less effective strategy because:
a. Employers have initiated a policy preventing salting by not hiring anyone
who adds information to their application, such as “voluntary union
organizer.”
thereby questioning many union “salts”
C. Union Avoidance Strategies by Employers
1. Positive strategies include addressing concerns of workers, improving
2. Negative strategies include a corporate commitment to avoiding unions as shown
in Profile 4-2 and 4-3.
4. TIPS – Things that a manager cannot do: Threaten, Interrogate, Promise, or Spy.
6. Countersalting steps include better pre-screening, make sure application for
employment includes all dates, and check references.
D. Rules on organizing in the workplace
1. Soliciting union support on employees own time even on the employer’s
premises is allowed.
2. Picketing during a campaign against primary employer is allowed but must file
petition for election within 30 days.(Table 4-3)
VI. Representation Election Procedures
A. A petition is filed at office of the regional director of NLRB.
2. RM petition. Filed by employer where employer questions the status of the labor
organization or filed when employer has proof the union no longer holds majority
3. UD petition. 30 percent or more of employees file to rescind union shop.
5. AC petition. Change of circumstances be recognized.
B. Petitions requesting certification or decertification should show support of 30 percent of
employees in unit.
C. Another union may enter an election with a showing of interest of at least 10 percent of
those in the unit.
D. Investigation conducted by regional director to determine whether to proceed with
election.
1. Jurisdiction
3. Appropriate unit
E. A secret ballot election is held.
F. Prohibited Conduct
1. Misleading information, misrepresentations
3. Gissel case. In certain cases, employer can communicate general views as long as
predictions involve consequences outside employer’s control.
5. Cannot promise economic benefit if union is rejected.
6. Interrogation and polling of employees
a. Struksnes Construction, Inc. Polling is unlawful unless done by secret
7. Surveillance. Usually viewed as unfair labor practice.
G. NLRB certifies the election results if it is satisfied election represents employees’ free
choice.
H. If certified, the NLRB will not allow petitions for rival certification either within one year
of certification, or within three years if a valid contract is in force.
I. Voluntary Recognition
2. Neutrality/card-check recognition when employer agrees to remain neutral to
union organizing drive and accept majority cards without election.
3. Congress introduced both a Secret Ballot Protection Act of 2005 and an
Employee Free Choice Act to address both sides of the issue.
J. NLRB Directive Recognizing Union
2. Limited to where union actually gained majority status.
4. Possession of authorization cards, signed by a majority of employees, authorizing
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K. First Contract Bargaining
1. Usually the most difficult because no bargaining relationship exists.
2. NLRB can issue injunction to require employer to bargain.
L. Decertification Election
1. Election to vote to terminate an existing union’s right to represent a union.
3. Other rules are similar to certification elections.
5. “Tips from the Experts” to encourage or discourage elections.
M. Representation Elections in the Public Sector
N. Exclusive Representative
1. As a practice, provides that all workers in same unit are represented by one
union—thereby giving a union strength.
3. Union Security—a labor union is certified as the exclusive bargaining agent for
CHAPTER 4: CASE DISCUSSION
Case 4.1 APPROPRIATE UNIT
1. Explain why you agree or disagree with the court ruling in this case.
Agree: The employer separated the work being done at the two locations for a reason. Obviously
2. Why would a union hope to have a smaller employee base declared an “appropriate unit”?
Case 4.2: AUTHORIZATION CARDS HONORED FOUR YEARS AFTER SIGNING
1. Was it fair for the NLRB not to take “changed circumstances” into account in deciding this case
simply because the Employer failed to present the information?
Yes: The employer could have put the new information before the NLRB for its review if the
2. Is it reasonable for the NLRB to require that the union be recognized by the employer when
almost all of the employees who signed union cards are gone?
CHAPTER 4: END CASE DISCUSSION
Case Study 4.1 SALTING
Decision:
On the issue of failing to hire the overt salts for employment, the Company has met its burden to
show that it would not have considered the applicants for the driver positions even in the absence of their
union affiliation. At the time that the seven overt salts attempted to apply for employment, the Company
was hiring drivers, a position that required a CDL and a HAZMAT endorsement. The overt salts did not
satisfy those requirements. Accordingly, it is clear that the Union has failed to establish that the
Company violated the Act for failing to hire the overt salts for the driver positions. The Union also
contends that the Company unlawfully failed to hire the overt salts for field technician positions, for
which they were qualified. In order to prove this violation, the Union must first establish that the
Company was hiring field technicians, or had concrete plans to hire field technicians, on April 13, the
date on which the overt salts visited the Company’s facility. The evidence in the record does not establish
that the Company was hiring for a field technician position for which the seven overt salts may have had
the necessary experience or training. In these circumstances, we find that the Union has failed to prove
the allegation that the Company violated Section 8(a)(3) and (1) by refusing to hire overt salts.
Further, insofar as the Union argues that the Company unlawfully refused to consider the overt
Questions for Discussion:
1. Explain how the Company’s treatment of both the “covert” and “overt” salts applications for jobs
compares to the recommended counter-salting steps for employers.
2. Would either the “covert” or the “overt” salts in this case satisfy the NLRB ruling that applicants
for employment must be genuinely interested in seeking employment before claiming protection
under the NLRA?
3. Does the Company’s opposition to becoming a union shop indicate that there was antiunion
animus in refusing to consider the “overt” salts for employment?
No, the Company did not refuse to hire the overt salts because there were no jobs available.
Case Study 4.2 EXCLUSIVE REPRESENTATION
Decision:
The court ruled that the union had no duty to represent the former employees. The duty of fair
representation is derived directly from the “exclusive bargaining” right under the NLRA and does not
extend outside of the bargaining unit. If the union wanted to represent the employees and if the company
would voluntarily agree, then the union could represent them but was under no obligation to do so.
Questions for Discussion:
1. If the court rules that the union has no duty to represent these former employees, they cannot
pursue their grievance against the company. Discuss why this result is fair or unfair to all three
parties: the company, the union, and the former employees.
It is fair to the company because the company made a deal over 10 years before, when lay-offs
2. When the union bargained for the laid off employees, the employees were told they would have
future employment opportunities with the company. Do you think it was unreasonable for these
laid off employees to expect the union’s help 11 years later? Why or why not?
3. If the company and the union had known that 11 years would pass before positions opened up at
this plant, do you think they would have provided this “future employment opportunities”
provision?
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CHAPTER 4: REVIEW QUESTIONS
1. What criteria does the NLRB consider when determining whether an appropriate unit of
employees has substantial mutuality of interests?
2. How does the National Labor Relations Act limit the Board’s determination of the appropriate
bargaining units?
3. What are the steps the NLRB follows in a representation election?
4. How does certification benefit a union?
Certification benefits a union by:
a. Closing any challenge to union’s status as the exclusive bargaining agent
b. Maintaining an employer must bargain with the certified union for at least a year
c. Giving the union rights as to strike actions
Under what circumstances might the NLRB invalidate a certification election?
5. What factors might contribute to employees voting to decertify a union?
6. What are the “rules” employers and union organizers must follow during an organizational
campaign?
a. Employees may solicit union support on the employer’s property during off-work time.
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7. Compare bargaining unit determination in the public and private sectors.
At the federal level, the federal law applies a community-of-interest test to identify an appropriate
unit on an agency, plant, installation, functional, or other basis. Confidential employees,
managers, supervisors, and personnel employees are excluded from the bargaining unit.
A community-of-interest test is also used in state and local governments that recognize the right
of the public employees to organize. However, as many states recognize only specific groups of
employees who might become organized—teachers, police officer, firefighters — determining an
appropriate unit is generally moot. However, when necessary to define community of interest in
the public sector, the following criteria have been developed by the Advisory Committee on
Intergovernmental Relations:
8. Discuss the issues from the employer’s standpoint on union “salting” efforts.
Employers complain that “salts” are serving two masters in the workplace, the company and the
9. Explain the respective roles of the four levels of unions: local, national, intermediate, and
federation.
Unionized workers are members of a local union, which handles the day-to–day operations of the
collective bargaining agreement, disposes of most grievances, manages strikes, and disciplines
members. A local union may fill a social role in the lives of its members, sponsoring dances,
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10. What steps are commonly used by unions to organize a workplace?
Step 1: Build an Organizing Committee to educate coworkers about the union and to warn
and educate coworkers about the impending management antiunion campaign. The organizing
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YOU BE THE ARBITRATOR
“Just Cause” For Termination
1. As arbitrator, what would be your award and opinion in this arbitration?
such a standard is not to be considered.
2. Explain why the relevant provisions of the CBA as applied to the facts of this case dictate the
award.
3. What actions might the employer and/or the union have taken to avoid this conflict?