Conflicts in the workplace

How many types of strikes are there?

- 4 - primary - economic - unfair labor practice strike - rolling strike

Just Cause

- A standard found in most company/labor union contracts - Employer agrees not to discipline or discharge unless there is just cause - Also includes binding arbitration as process to determine whether there was just cause when union challenges employer's discipline or discharge of a union member - Burden of proof is on the employer

Primary Strike

- A strike between an employer and employee.

Power Disputes

- Ability to overcome another's efforts through sheer power - Settlement is imposed by raising the cost of disagreement - Common in mergers and acquisitions and to some degree in labor/management relations - Typical examples - - Large company acquires a small one and trashes their HR policies - Employer taking abusive advantage of low skilled workers in a tight labor market

The Rise of Alternative Dispute Resolution (ADR)

- Alternative to litigation over workplace disputes - Emergence began in the late 1970's - Employers greatly dissatisfied with litigation - Benefits of ADR: Avoidance of excessive costs, delays and/or unexpected outcomes - Companies eventually turned to ADR to also resolve disputes with other businesses, clients, customers as well as their employees

The Employment Relationship

- Conditions: - An express or implied agreement exists where one person ("employee") performs services or does work under the direction or control of another ("employer") in exchange for compensation

Different types of workplace conflict: strikes and lockouts

- Contract negotiations can result in either an agreement or an impasse (stalemate) - Impasse may be the result of - Interests that are not reconciled - One party having no intention of settling - Result of a strategic impasse miscalculation that was intended to move the parties closer - Example - "If we tell them that there is no way on earth that we could ever agree to their proposal on ____ they will give up and we'll be able to settle."

Mandatory employment arbitration: stakeholders view

- Disadvantages for Plaintiffs: - Won't have a jury hear their story -- and juries are often sympathetic to employees - Process limits the amount of information each side can get from the other and the employer is usually the one in possession of most of the documents and information relating to the employee's case - Binding arbitration cannot be appealed, which makes arbitration awards more final than court verdicts

The Essence of conflict

- Disagreement - Interdependence of the parties - Mutual effort required for resolution - May be real or perceived - Psychologically impacts at least one party - May or may not result in an observable response

Interests Disputes

- Disagreements that affect what people want or need to receive relative to their employment - Typical examples include disputes over: - Work assignment - Performance evaluation - Scheduling - Promotion - Compensation

Comparing a distressed to an effective dispute resolution system

- Distressed: - more power dispute focused Effective: - more interest focused

Concerns about Employment Arbitration

- Fairness of procedures due to unilateral employer adoption - Cost distribution - If employer pays, will it influence arbitrator? - If parties split fee, does employee have sufficient resources? - "Repeat player" problem

No strike, no lockout provision

- Found in the vast majority of collective bargaining agreements - Restricts the union's right to call a strike and management's ability to stage a lockout - 63% are unconditional - The remainder allow for the possibility of strike or lockout under certain conditions such as: - Exhaustion of the grievance procedure - Violation of an arbitration award - Refusal to arbitrate a dispute

Mediation in Traditional bargaining

- Gaining acceptability --> probing for potential compromises--> the push to compromise

Lincoln Mills and three key principles

- General Arbitrability - if a contract provides for arbitration of grievances, a grievance is presumed to be arbitrable as long as the contract does not specifically prohibit it - Expired Contracts - Post-expiration grievances are arbitrable if the dispute occurred during life of agreement (i.e. the agreement has not yet expired) - Successorship - Duty to arbitrate inherited by successor (i.e. new) business owners as long as there is substantial continuity between old & new companies

Types of labor/management disputes and success in setting through mediation

- High Success - poor communication - misunderstandings - over committed to positions - lacks of experience -Low Success - economic disputes - wide divergence in demands - internal conflict

Employee misconduct cases decided by arbitration

- In the union environment many discipline cases for misconduct are challenged by the union through grievances and ultimately labor arbitration - Not all of them are won or lost on guilt or innocence but because of: - Management's consistent enforcement of rules - Management's compliance with disciplinary - procedures in the contract - The employee's work history - The employees length of service with the Company

Unfair labor practice strike

- Industrial action by a trade union triggered by the employer's violation of the provisions of labor relations statutes. - Example - If a union member is fired for union activities, workers could stage a strike until the discriminatory practice was remedied.

Types of labor arbitration

- Interest - Occurs over formation of a collective bargaining agreement or efforts to secure one - Rights - Interpretation of a party's rights or the application of a particular provision under current contract terms

Rights Dispute

- Legally protected - Statutes, regulations, court decrees Unwritten common laws - Employment at will - Employers' practices, policies, contractual agreements - Typical examples - - Discrimination claims - Whistleblower (retaliation) claims - Alleged wage and hour violations - Alleged OSHA violations

Permanent Strikers Replacement

- Mackay doctrine - 1938 Supreme Court decision - Employers can permanently replace striking workers without violating the law, however: - Employers can not replace striking workers striking over an unfair labor practice - Strikers who apply must be placed on a list for recall as future jobs become available if they do not find other employment - Employers can not grant pay increases to replacements that were not offered to strikers

Employee Misconduct

- Major serious offenses may warrant immediate ("summary") discharge without necessity of prior warnings or attempts at corrective action - Minor offenses call for attempts at corrective action (not discharge) for a first offense - However, minor offenses can, when repeated despite warnings, eventually lead to discharge

Mandatory employment arbitration: stakeholders view

- Management View: - A fair and effective solution - Consistent with legislative intent

Employment at will

- Means that an employer can terminate an employee for a good reason, a bad reason or no reason at all - A uniquely American concept - No predetermined time or duration of employment - Relationship is terminable "at will" - Either party can walk away with, or without, cause - Applies to about 85% of American workers - Does not apply to - employees in a labor union or (~12%) - Non-union employees who have an employment contract requiring cause for dismissal (~3%)

Common Procedural Techniques used to resolve impasse

- Mediation - Keep parties talking - Carry messages between parties - Make suggestions - Fact Finding - Gather facts - Makes report or announcement - Recommends appropriate settlement - Interest Arbitration - A settlement is imposed - Common in public sector; Rare in private sector

The most common methods used to resolve disputes

- Negotiation - The parties work out a mutually agreeable solution - Mediation - A third party assists parties in developing their own solution - Arbitration - A third party decides who is right/wrong; can be a non-binding decision (rare - often called advisory arbitration) or final and binding (much more common and virtually impossible to appeal or overturn) - Facilitation - Third party assistance, sharing of information - Ombuds - Person who conducts an investigation and attempts to assist the parties in settling the dispute

Alternative dispute resolution procedures

- Negotiation - Facilitation - Mediation - Arbitration - Conciliation - Dispute Panels - Early Neutral Evaluation - Fact Finding - Mini-trials - Ombuds - Partnering - Peer Review - Summary Jury Trial

history and legal strikes of arbitration

- Past practice is recognition of the bargaining history of the two parties involved in the dispute - However, clear language trumps past practice - Common law of the shop is recognition of the bargaining history of those in the same industry as opposed to parties in a particular case - Parol evidence refers to evidence, oral or otherwise, that is not contained within the collective bargaining agreement - Usually not admitted to vary or to contradict contract language

The five phase methodology

- Phase 1 - Creating the Process - participative and collaborative

The five phase methodology

- Phase 2 - Designing the system - requires addressing major policy changes

the five phase methodology

- Phase 3 - Implementing the system - involves anticipating and surmounting barriers

the five phase methodology

- Phase 4 - Evaluating the system -

the five phase methodology

- Phase 5 - Modifying the system - to meet needs or correct problems - revealed in evaluation

Mandatory employment arbitration: stakeholders view

- Plaintiff's view: - Unfair, twisted interpretation of the law by Federal Judges - Overturns the intent of Congress - Inconsistent with intent of the Civil Rights Act of 1964 - Plaintiff Bar View (National Employment Lawyers Assn.): - Articulate a strong policy against mandatory arbitration programs

Illegal strikes

- Sit-down strike - Takeover of employer's property, seen as a violation of the owner's property rights. - Wildcat strike - Economic strike conducted by a minority of the workers without approval of the union and in violation of a no-strike clause in an existing contract. - Partial strike - Various job actions such as slowdowns or refusal to work overtime. Seen as a violation of the owner's property rights. - Sickout - Organized effort to have employees call in sick.

Steps in a typical grievance procedure

- Step 1: Employee, Steward and Supervisor - Goal is to resolve disputes at the lowest possible level - Often the parties will seek to rely on prior grievances of a similar nature to support their relative positions - Grievance and reply are typically verbal vs. written - Step 2: Chief Steward, Union Committee and Manager Written grievance; more formal Employee (grievant) typically not present from this point forward until arbitration

Steps in a typical grievance procedure continued

- Step 3: Local Union Executive Board, Labor Relations Manager and Staff - Review the written grievance - Typically will have researched the issue for precedent or other relevant facts - Both parties take minutes in case the matter is not resolved and is moved to the final step - arbitration - Step 4: Arbitration - Approximately 98% of collective bargaining agreements provide for binding arbitration as the final step in the grievance process

Economic strike

- Stoppage of work due to conflict over mandatory issues (issues that must be resolved through collective bargaining) such as wages or working conditions.

Rolling strike

- Targets one location at a time for a union walkout. Makes hiring replacements or covering locations with management nearly impossible.

Exceptions to employment at will

- Termination violated public policy - Express or implied guarantee of continued employment - Theory of implied covenant of good faith and fair dealing

Mandatory employment arbitration: stakeholders view

- The Equal Employment Opportunity Commission (EEOC) View: - Has a clearly articulated hostility to mandatory arbitration clauses - However, has become increasingly in favor of voluntary post-dispute mediation of statutory claims

Mandatory employment arbitration: stakeholders view

- The National Academy of Arbitrators View: - Clearly opposed to mandatory employment arbitration clauses yet permit members to serve on cases

Private sector strikes

- Threat of strike by union employees is union's way to show power, put pressure on management & possibly make gains at the bargaining table.

Concerns to consider with litigation

- Unexpected jury awards: perception of "deep pockets" Win/lose outcome - Damage to relationship - Very formal, rigidly structured process - Adverse publicity - Frequency of settlement "on court house steps" - Time consuming, often involving delays - Disputants can't select the third party assigned to rule on the case

Mediation

- Use of a neutral, impartial third party to aid principals in reaching agreement or resolving disputes - Voluntary as opposed to imposed settlements - Both parties must be willing to attempt resolution through the mediation process for it to work - Emphasis on problem solving and resolution - The parties each retain all decision making power - they do not forfeit that power to the mediator

Where Mediation Fits into ADR

- Usually follows negotiation when no agreement has been reached - If mediation attempt fails to result in resolution or agreement, arbitration is often a logical next step

Types of interest arbitration

- Voluntary - parties agree to submit if negotiated agreement not reached - Compulsory - required if no negotiated agreement reached - Coventional - Arbitrator free to craft award without restrictions - Final Offer - Must choose either the union or management's last offer

Categorizing disputes

-Interests -Rights - Power

Seven test of Just Cause

1.Was the employee adequately warned of the consequences of his conduct? 2. Was the employer's rule or order reasonably related to efficient and safe operations? 3. Did management investigate before administering the discipline? 4. Was the investigation fair and objective? 5. Did the investigation produce substantial evidence or proof of guilt? 6. Were the rules, orders, and penalties applied evenhandedly and without discrimination? 7. Was the penalty reasonably related to the seriousness of the offense and the past record?

Public sector strikes

Strikes are usually unlawful although occasionally they occur.