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Organizing General
Organizing Resources - Terms and Definitions
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Administrative Law Judge
As with other federal agencies (such as the Labor Department or
Social Security Administration), the NLRB has a corps of judges
who conduct hearings at which the parties present evidence. These
judges work for the NLRB (i.e., they are not federal district
court judges). Decisions of Administrative Law Judges can be appealed
to the five-member Board in Washington, D.C. [From the NLRB Glossary
of Terms.]
Agency Shop
A unionized shop in which nonunion employees in the bargaining
unit are not required to join the union but must pay the union
an "agency fee" traditionally equal to the union's regular
fees and dues. Historically, such a contractual provision was
often referred to as the agency plan and was adopted in the private
sector when UNION SHOP proposals met strong employer resistance.
The rationale for paying the union a service or representation
fee was based on the fact that the law requires the union to represent
all employees in the bargaining unit, and nonunion employees along
with union members benefit from the terms and conditions of the
labor agreement, including the processing of grievances through
to arbitration. The agency shop is labor's protection against
the free rider, a nonunion employee in the bargaining unit. In
the construction industry, the Building Trades Union refers to
a free rider as a straight.
An agency shop provision in which it is stipulated
that the agency fee required of nonunion members be less than
full union dues is often referred to as a fair share agreement.
There has been much litigation over the years as to the legal
status of the agency shop and, especially in the public sector,
as to what constitutes a "fair share" of union dues
to be paid to the union as a service or agency fee. In general,
the United States Supreme Court has upheld the legality of agency
shop provisions so long as the agency fees or service charges
are used to finance expenditures by the union for collective bargaining,
contract administration, and grievance handling, but not for such
union expenditures as political action, death benefits for the
families of deceased members of the union, and the like.
Bargaining Agent
The union or association of employees recognized or designated
as the exclusive representative of employees in a bargaining unit.
The bargaining agent is obligated by law to represent all employees,
both union members and nonunion workers, in the bargaining unit.
The union may be voluntarily recognized by an employer as the
bargaining agent or it may be designated (certified) in a representation
election conducted by the NLRB or by the appropriate state or
public sector agency.
Bargaining in Good Faith
The National Labor Relations Act, Section 8(d), requires that
bargaining be carried on in "good faith." In the determination
of the NLRB and the courts, "good faith" bargaining
has frequently been defined in a negative fashion as, for example,
"not bargaining in bad faith" or "the failure of
either party to fulfill its bargaining obligations." Failing
to meet at reasonable and convenient times; failing to meet with
minds open to per- suasion and a view toward reaching agreement;
"surface" bargaining with repeated withdrawal of previous
concessions; taking actions deliberately designed to weaken the
union's status as the bargaining representative; and presenting
proposals on a "take it or leave it" basis - all are
examples of bad faith bargaining or, rather, lack of good faith
bargaining.
Bargaining Unit
The group of employees in jobs constituting the appropriate unit
for representation by a union. In a sense, the employees in the
bargaining unit are the electorate that determines which representative
is to be chosen for collective bargaining. Historically, prior
to the NLRA and the majority rule in determining the bargaining
agent, the unit for collective bargaining was whatever the union
was able to make it by exerting economic pressure on the employer.
As provided by law, the bargaining unit is "the employer
unit, craft unit, plant unit, or subdivision thereof," and
essentially it consists of those employees who share a "community
of interest." The employee bargaining unit embraces all employees,
whether or not they are members of the union, and is basically
of two types, namely, craft and industrial. The bargaining unit
is separate and distinct from the union, and it is incorrect to
refer to the union as the bargaining unit.
Certification
The designation of a union as exclusive representative or bargaining
agent of a given unit or group of employees. Certification is
made by the NLRB or appropriate state or public sector agency
and the union so certified is the majority choice of the workers
in a secret-ballot representation election. When two or more unions
compete for the right of representation, only one of the unions
can be legally certified as the exclusive representative. In return
for this exclusive right, the union must represent every employee
in the bargaining unit whether or not they are union members.
Certification protects the union against rival unions for one
year and requires the employer to bargain.
Charge
An allegation made by an individual, employer or labor organization
of an unfair labor practice under the Act. Charges are filed at
NLRB's regional offices. [From the NLRB Glossary of Terms.]
Collective Bargaining
The process by which labor and management establish wages, hours,
and working conditions at the workplace. The legal definition
of collective bargaining as set forth in the Taft-Hartley Act
(Labor-Management Relations Act, 1947, as amended), Section 8(d),
is as follows: "[T]o bargain collectively is the performance
of the mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and conditions
of employment. . . the negotiation of an agreement or any question
arising thereunder, and the execution of a written contract incorporating
any agreement reached if requested by either party. . . such obligation
does not compel either party to agree to a proposal or require
the making of a concession." Collective bargaining is also
called contract negotiations, labor negotiations, and collective
negotiations, although the last term is reserved by some to characterize
public sector negotiations in which the right to pressure a settlement
on wages, hours, and working conditions by the threat or use of
strike is largely not legally available.
Collective Bargaining Agreement
The written terms of the agreement of labor and management on
wages, hours, and working conditions. Also called labor agreement
and labor contract, the collective bargaining agreement need not
be in writing to be legally enforceable, but in virtually all
instances labor and management customarily record the terms of
their agreement in a written document.
Complaint
If, after investigating a charge, the [NLRB] regional office finds
merit and no settlement is reached, the Regional Director serves
a complaint in the name of the Board stating the unfair labor
practices and containing a notice of hearing before an Administrative
Law Judge. The complaint does not constitute a finding of wrongdoing
but raises issues to be
decided by the judge. [From the NLRB Glossary of Terms.]
Contract Administration
Taking steps to make certain that contract provisions are being
complied with and that questions and disputes arising under the
agreement are processed under the grievance procedure. Sometimes
called grievance administration or grievance handling.
Contract Bar
The term used to describe the period designated by the NLRB or
by the appropriate state or public sector agency as a bar to the
displacement of a union as the exclusive representative and bargaining
agent in a given contract. In the interest of balancing labor
relations stability with the need to protect workers in their
right to designate unions of their own choosing, the NLRB has
held that a union's representational status may not be challenged
for at least one year after certification, or during the existence
of a valid COLLECTIVE BARGAINING AGREEMENT. Contracts of longer
duration than one year are examined on an individual basis by
the NLRB, but to date, at least, the Board has ruled a contract
bar to union challenges for the duration of multiyear contracts
of up to three years. This policy of the NLRB has had a positive
influence on the receptivity of labor and management to multiyear
contracts, and has led to the predominance of 3-year agreements.
Creative Bargaining
Bargaining that is innovative and creatively, if not uniquely,
designed to meet individualistic problems at the bargaining table.
Creative bargaining is not necessarily mutually beneficial, or
ideal, or model bargaining in a general labor relations or public
interest sense. For example, BOULWAREISM, was categorized as creative
bargaining when first designed and practiced by General Electric,
but while innovative, it was by no means ideal from a labor relations
standpoint, and, indeed, it was ultimately held by the NLRB to
be a failure to bargain in good faith. The terms creative bargaining
and innovative bargaining have often been used synonymously.
Economic Items
The strictly "money items" discussed at the bargaining
table, such as wages, hours, vacations, paid holidays, sick leave,
bereavement leave, jury duty pay, pensions, health and welfare
benefits, and the like.
Employment-at-Will
A concept which holds that a worker's employment is "at the
will of the employer" and that the employer is free to terminate
an employee at any time....The managerial right to discharge an
employee at will has been largely curtailed through unionization
and by the collective bargaining agreement, which states that
the discharge of workers covered by contract must be for just
cause.
Fringe Benefits
All nonwage economic benefits such as vacation, paid holidays,
sick leave, and the like. Management prefers that these be termed
employee benefits. It is estimated that 35-40% of the average
employer's labor-cost dollar goes to nonwage economic benefits.
Good Faith Bargaining
Section 8(d) of the Act states in part: "To bargain collectively
is the performance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation of an agreement
or any question arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by either
party, but such obligation does not compel either party to agree
to a proposal or require the making of a concession..." [From
the NLRB Glossary of Terms.]
Grievance
A formal complaint alleging a violation, misapplication, or misinterpretation
of the collective bargaining agreement. Usually a grievance is
raised by an individual employee in a bargaining unit, with the
SHOP STEWARD and various union representatives assisting the employee
in carrying the grievance forward. Occasionally, depending on
the nature of the grievance and the contractual provisions, the
union or even the employer may bring a grievance.
Grievance Procedure
Also called grievance steps, this procedure consists of the successive
steps or stages in processing a grievance. For example, the initial
step is taking the matter up with the foreman; then, if denied
or not acted upon within a specified time, presenting the grievance
successively to the department head, the plan manager, and, ultimately
in most instances if not resolved, to an arbitrator.
Impasse
A deadlock in negotiating between management and officials over
terms and conditions of employment. Whether an impasse in bargaining
exists "is a matter of judgment," the Board said in
its 1967 decision in Taft Broadcasting Co. v. AFTRA, and depends
on such factors as "bargaining history, the good faith of
the parties in negotiations, the length of the negotiations, the
importance of the issue or issues as to which there is disagreement,
the contemporaneous understanding of the parties as to the state
of negotiations." [From the NLRB Glossary of Terms.]
Integrative Bargaining
The term used to describe the behavioral pattern of labor negotiations
when the parties approach bargaining with the attitude that there
is no winner or loser and that both parties will benefit from
the negotiated settlement. Contract demands and proposals on such
provisions as eligibility for holiday pay, sick leave, vacation
time, shift preference, and the like, are generally viewed as
"integrative prone" items. Practitioners reason that
once the parties reach agreement, for example, on the number of
paid holidays to be provided under the contract, both parties
will want an eligibility provision that is fair and equitable
to employees. Similarly, welfare or pension benefits provided
under a cost-agreed or defined contribution plan, as distinct
from a defined benefit plan, will tend to be approached in an
integrative fashion. The negotiation of demands for reductions
in the base contract hours of work, however, will more than likely
tend to be "distributive prone" since, invariably, such
demands are accompanied by the condition that there be no reduction
in day or weekly base pay. On the other hand, negotiation of contract
proposals for changes in the scheduling of base contract hours,
including proposals for flextime, could well be "integrative
prone."
Just Cause
While the employer's right to hire, fire, and discipline employees
is invariably set forth in the MANAGEMENT RIGHTS CLAUSE, most
contracts in addition specifically state that management may not
discipline or discharge an employee without cause, just cause,
or as occasionally and variously stated, for sufficient and reasonable
cause, for good cause, for sufficient cause, and the like. Whatever
the qualifying term - cause or just cause or some other - the
contractual obligation is clear: the managerial right to discipline
and discharge an employee is not an absolute right, and the burden
of proof as to the equity and propriety of the action, when challenged
under the grievance procedure to the finality of arbitration,
is management's.
Long- and Short-term Contracts
There is no firm or fast rule as to what is to be categorized
as a short-term contract over and against a long-term contract.
Inasmuch as, historically, labor contracts were entered into for
one year and contracts were rarely, if ever, written for a shorter
period, it has become commonplace to refer to a contract of one
year or longer but less than two years in duration as a short-term
contract. Multiyear contracts of two or more years' duration are
generally referred to as long-term contracts.
Mandatory Subjects of Bargaining
Subjects that by law must be negotiated by labor and management
when insisted upon by either party. The NLRA refers to mandatory
subjects broadly as "wages, hours, and other terms and conditions
of employment." In the private sector, at least, there has
been a persistent trend over the years, as determined by the Board
and the courts, to broaden the scope of mandatory bargaining items.
Nondiscrimination Clause
A contractual provision which specifically prohibits discrimination
on the basis of race, color, creed, sex, national origin, age,
or union activity.
Noneconomic Items
All items of the labor contract other than the "money items."
It is wrong to assume, however, that noneconomic items are not
costly items or are less important than economic items. Some noneconomic
items - for example, the management rights clause and the union
shop or other union security clauses - often are "items of
principle" to the parties and occasion some of the hardest
and most intense bargaining. Other noneconomic items, such as
a provision requiring employees to start and end a shift at the
same time so as to eliminate the employer's use of split shifts,
or prohibiting or limiting an employer's flexibility in contracting-out
work, or stipulations on the manning of machines, can be, and
generally are, very costly to management.
No Strike-No Lockout Clause
A contractual provision which states that the union will not strike
and the employer will not resort to lockout during the life of
the contract. As provided in 95% of the labor contracts in the
United States, there is the quid pro quo that employee grievances
and disputes over the interpretation of contractual provisions
be submitted to a grievance procedure, with resolution, if necessary,
in final and binding arbitration. Also, a no-strike promise is
implied if there is an arbitration clause in the contract, whether
or not there is an express no strike-no lockout clause.
Permissive Subjects of
Bargaining
Subjects of bargaining that are neither mandatory nor unlawful.
Bargaining on permissive subjects may be voluntarily entered into
and agreed upon, but it may not be carried to the point of impasse,
strike, or lockout by either party. Such subjects as interest
arbitration, union representation on a company's board of directors,
definition of the bargaining unit as it affects multiplant and
multiemployer units, inclusion of foremen and other supervisors
in the bargaining unit, presence of a court reporter at negotiations,
designation of labor and management representatives at the bargaining
table, performance bonds such as requiring a union to post a bond
to be forfeited in the event of a strike during the life of the
contract or requiring an employer to post a bond to be forfeited
in the event of a delinquency in welfare and/or pension payments
under the contract, and pensions for retirees are all permissive
subjects of bargaining.
Recognition Clause
A contract clause setting forth the union designated as the exclusive
representative of, and bargaining agent for, a specified group
or groups of employees.
Union Shop
A unionized shop which requires employees to join the union within
a specified period of time and to remain a member "in good
standing." Thus, employees need not be a member of the union
to be hired, but as a condition of continued employment they must
join the union within the designated period - 30 days for industry
generally, 7 days for construction. Under pertinent NLRB rulings,
the requirement to "join a union" and to remain a member
"in good standing" under a union shop clause has largely
meant that the employee must tender regular dues and initiation
fees. An employee who refuses to join the union or to pay dues
under a union shop agreement must be discharged when proof is
presented and the union requests discharge. However, an employee
who has offered to pay dues and appropriate fees and is denied
membership by the union has satisfied. The prerequisites of the
law under a UNION SHOP PROVISO and cannot be discharged because
of nonmembership in the union.
Unlawful Subjects of Bargaining
Subjects of bargaining which by law or the designated administrative
agency and the courts may not be bargained. Such subjects may
not lawfully be put into a contract and are not enforceable if
they are already in the contract. Under the NLRA, the Taft-Hartley
amendments, and the Landrum-Griffen Act, unlawful subjects of
bargaining include the closed shop, discriminatory or preferential
hiring-hall clauses, "feather-bedding," secondary boycotts
and "hot cargo" clauses. It is unlawful, too, to bargain
over provisions that discriminate because of race, creed, origin,
national origin, sex, or age. Similarly, the parties may not
lawfully bargain provisions in violation of the minimum protection
and statutory standards set forth in such pertinent legislation
as child-labor laws, minimum wage and maximum-hours laws, and
the like; contractual agreements may lawfully improve on these
standards, but they may not lawfully provide less.
