Bargaining Unit

1. 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

2. 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

3. Establishing a bargaining unit Doctrine of Exclusive Representation Union must provide services to all employees in the bargaining unit

4. 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

5. 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)

6. 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.

7. 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

8. 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

9. Union Nonunion wage differential by skill level WU/WN 1.0 Skill Level

10. 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

11. 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?

12. 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

13. 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.”

14. 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

15. 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

16. 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

17. 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

18. 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?

19. Unit Types • Distinguished by • Size and Scope • Heterogeneity of membership • Centralized vs Decentralized

20. 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

21. Type of Unions Federation: AFL-CIO LIUNA UAW UFCW Local Local Local Local Local Local

22. Make up of Local Union President Staff Stewards

23. Unit Types: Single Employer, Single Location Narrow scope, heterogeneous, decentralized Management Production Maintenance Sales U N I O N

24. Unit Types: Single Employer, Multiple Locations Broad scope, heterogeneous, centralized U N I O N Plant 1 Production Maintenance Management Plant 2 Production Maintenance Plant 3 Production Maintenance

25. Unit Types: Multiple Employers Broad scope, heterogeneous workers, but firms must be similar to one another, most centralized U N I O N A S S O C I A T I O N Firm 1 Management 1 Production Maintenance Firm 2 Management 2 Production Maintenance Firm 3 Management 3 Production Maintenance

26. Unit Types • Coordinated Bargaining: Europe • Multiple Unions and Firms

27. 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

28. 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