Employee Rights When Employer Is Bankrupt

					         Bargaining Unit
Group of workers within a plant, firm,
occupation or industry that, on the basis of
commonality of interest or production
process; is determined by the NLRB to be
the appropriate unit for collective bargaining
purposes
    Establishing a bargaining unit
          Doctrine of Exclusive Representation

Union is the exclusive representative of all employees in
the bargaining unit
   –Firm must deal with employees as a group—cannot divide and
   conquer; cannot enter separate agreements with subsets of
   workers
   –Individual employees can bypass the union in bringing
   grievances before the employer, but resolution cannot be
   inconsistent with the contract
   –Exclusivity lasts minimum of one year, maximum of three
   –Union membership outside of a bargaining unit has very little
   power
   Establishing a bargaining unit
  Doctrine of Exclusive Representation

Union must provide services to all
employees in the bargaining unit
     Establishing a bargaining unit
  Importance of the definition of a bargaining unit
Broader representations means more power for
union; better ability to disrupt production
More diverse means more difficult/expensive to
provide services
Gerrymandering: Firm wants to add groups that
are less likely to vote for the union; union wants the
opposite.
Standardized bargaining unit leads to pattern
bargaining—can set wage standards for the industry,
even for the nonunion sector
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)
   Community of interest doctrine: similarity of job
    function, earnings, benefits, hours, required skills, and
    supervision; production activities in close proximity,
    considerable interaction (KEY)


   History of bargaining: If unit had been organized
    before, was the unit effective? (LESS COMMON)
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)
   Employee interests: If two or more configurations
    are equally plausible, NLRB may use the secret ballot to
    assess employee preferences. Globe Machinery and
    Stamping, Co. (1937)

   Company organizational structure: NLRB has
    decided that bargaining units must be defined on a case-
    by-case basis. Workers who otherwise may not be
    combined, but who all report to the same supervisor or
    work in the same production process may be combined.
    (Bendix, 1937)
    – Bendix (1977): NLRB denied petition for craft unions to from a
      separate group because of past plant-wide bargaining history
      and joint production activities.
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)
   Union and Firm propose a mutually satisfactory
    unit (Stipulated unit)
    – NLRB must accept if consistent with NLRA


   Industry, occupation or firm tradition

   Public Interest
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)
   Special groups:
    – Craft Workers
        Purpose: Craft or skilled may be poorly treated when
         majority are unskilled (cross-subsidy of less-skilled)
        Petition for ―craft severance‖ when interest diverge
         from the bargaining unit (used sparingly)
        Decision depends on (Mallinckrodt Chemical Works, 1966)
               firm bargaining history,
               industry tradition,
               potential for disrupting existing collective bargaining
                agreements
               Extent of homogeneity, identity among crafts
Union Nonunion wage differential by skill level


WU/WN




        1.0




                                  Skill Level
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)
 Special groups:
  – Professionals
      Option of staying in larger group or splitting off     (used
      routinely)
      Sec 2(12) of NLRA
              Work is intellectual and varied,
              Consistent exercise of discretion and judgment,
              Requiring advanced specialized knowledge requiring
               advanced study
      Can be determined at time of certification election
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)

 Special groups:
  – Plant Guards and Security Personnel
      Section 9 (b)(3): cannot be in the same
       bargaining unit as other workers
      Must be represented by a separate union
        – Rationale: conflict of interest during strikes
        – Unfair to plant guards?
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)
   Special groups:
    – Supervisors, Managers, and Confidential
      Employees

        Not granted rights under Taft-Hartley amendments
         (conflicts with freedom of association)


        Conflict of interest
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)

 Special   groups:
  – Supervisors
  – Sect. 2(11): Supervisor has ―authority… to
    hire, transfer, suspend, lay off, recall,
    promote, discharge, assign, reward, or
    discipline…, if…exercise…requires the use
    of independent judgement.‖
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)

 Special   groups:
  – Managers
      Not granted rights under NLRA. NLRB vs Bell
       Aerospace (1974): all managers excluded,
       whether supervisory or not.
      Managers: those who formulate and
       effectuate managerial policies..‖
      Community of interest with executives of the
       firm
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)

 Special   groups:
  –Confidential Employees
      Not granted rights if engaged in
       personnel or labor relations matters.
       –Conflict of interest regarding handling of
        privileged financial or personnel
        information
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)
   Special groups:
        Agricultural Laborers
          – 1975 California statute allows certification, strikes during
            harvest.
        Part-time vs Casual Employees
          – Regular (at least 15 days of 90; seasonal with expectation
            of rehire) part-time employees that share community of
            interest included
          – Casual: ―as needed, intermittent, no expectation of rehire‖
            are excluded
          – Temp service? Probably excluded as nonemployees, casual,
            or independent contractors
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)
 Special   groups:
  – Independent Contractors:
      Excluded
      Defined by ―Right to control‖
       – Do a job for a price, decide how the work will be
         done, purchase materials, hire others, and
         depend on profits for income
       – Covered if under salary, take direction, do not
         purchase inputs,
       – Comparable definition presumably applicable to
         temporary employees
NLRB criteria for selecting a bargaining unit:
  (Based on 200,000 existing bargaining units)
   Special groups:
    – Health Care Institutions:
        Nonprofits excluded initially, added in 1974
          – Presumptively appropriate units (alternative to case-by-case
            assessment)
               Physicians; Registered nurses; All other professionals
                including LPNs; technicians; Clerical; Skilled
                maintenance; guards; other nonprofessional
        Employers fight these—fragmented votes
        Are physicians supervisors? Are RNs supervisors?
                 Unit Types
   Distinguished by
    – Size and Scope
    – Heterogeneity of membership
    – Centralized vs Decentralized
                  Unit Types
   Craft Units
    – Narrow, homogeneous, either centralized or
      decentralized
   Department Units
    – Narrow, heterogeneous, decentralized
   Industrial Units
    – Broad, heterogeneous, decentralized at the
      firm level or centralized
                    Type of Unions


                     Federation: AFL-CIO




        LIUNA                  UAW                   UFCW




Local       Local      Local         Local   Local      Local
Make up of Local Union



      President



        Staff




          Stewards
Unit Types: Single Employer, Single
             Location
    Narrow scope, heterogeneous, decentralized



                   Management




     Production    Maintenance        Sales

            U N I O N
     Unit Types: Single Employer,
           Multiple Locations
         Broad scope, heterogeneous, centralized


        U N I O N

              Plant 1

Production              Maintenance


               Plant 2                   Management
Production              Maintenance


              Plant 3

 Production             Maintenance
Unit Types: Multiple Employers
Broad scope, heterogeneous workers, but firms must be
         similar to one another, most centralized

      U N I O N                       AS S O C IAT I O N
              Firm 1
                                        Management 1
Production              Maintenance


               Firm 2
                                        Management 2
Production              Maintenance


              Firm 3
                                         Management 3
 Production             Maintenance
                Unit Types
   Coordinated Bargaining: Europe

   Multiple Unions and Firms
    When firms grow: Accretion
 If a firm adds employees into jobs that fit
  into a bargaqining unit, these workers are
  automatically added
 New job titles—firm and union could
  agree, or NLRB may rule
 New plants—firm and union could agree,
  or NLRB may rule
When firms merge or are acquired:
         Successorships
   Successor employer is not obligated by predecessor’s
    agreements
   Successor is not obligated to hire workers from
    predecessor. If successor does hire employees from
    predecessor, cannot discriminate by union interest
   If majority of successor employees were covered under
    predecessor, and production processes don’t change,
    then successor is obligated to bargain.
   Successor can offer new terms and conditions of
    employment
   Alter ego employers—bankrupt firm reopens with same
    management and same lines of business are obligated
    by prior agreements

				
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