Central Florida College Winter Park Classification of a Bargaining Subject Questions

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Case Study 6-3. The Influenza Work Rule Mercy Hospital is an acute care facility employing nearly 5,000 employees, including 602 nurses; the nurses are represented by the Regional Nurses Association (RNA). The Hospital and RNA have a CBA which was implemented two years ago and expires next year. The current contract calls for a joint labor-management committee to meet weekly for two hours on paid company time to discuss work and issues related to contract implementation. Last May, Mercy managers brought before the labor–management committee an announcement. “We are amending our ‘Fitness for Duty policy to require all nurses to be immunized against the flu.” The union objected, noting that some nurses were allergic to the preservative used in the flu vaccine and that a few objected to the flu vaccine on other grounds (doubts about its effectiveness, objections based on how it was developed, religious objections). The proposal was subject to discussion for six weeks. Subsequently, managers brought a revised policy last July. The Hospital informed the Union that it was considering requiring nurses to take one of three steps: • (a) be immunized against the flu, • (b) wear a protective face-mask, or • (c) take antiviral medication during flu season. Managers argued that any of these three steps would protect patients, many of whom were elderly, other employees, and visitors to the hospital from contracting influenza. During the course of the next several weeks, Mercy Hospital and Union officials discussed the revised proposal a few times and even exchanged correspondence over this matter. However, by late October, it was obvious that the RNA and Mercy members of the labor–management committee did not agree on the proposed flu policy. On November 1, the Hospital declared discussion to be at an impasse and that managers would immediately implement the revised flu-prevention policy requiring non-immunized nurses to either wear a face-mask or take antiviral medication. The Hospital’s attorney indicated the organization’s intention to handle any noncompliance with the policy through the “standard process,” which might include progressive discipline, ultimately resulting in employment termination for repeat offenders. The union immediately filed charges, alleging that Mercy Hospital had violated the LMRA. Union position The union alleges that Mercy Hospital has • (a) prematurely determined that there is an impasse in bargaining, subsequently unilaterally changing working conditions for nurses, and • (b) refused to submit the matter to an independent arbitrator under the existing contract’s grievance-arbitration provision. Elaborating upon each of these positions, Hospital management has a duty under the LMRA to bargain over this matter, as it constitutes a “working condition” in the form of a work rule and numerous NLRB precedent cases(e.g., Praxair, Inc., 317 NLRB 435, 436 1995) have established that work rules where employees may be disciplined are mandatory subjects of bargaining. Management representatives did not actually engage in bargaining over this matter; they merely described their proposed policy to the labor–management committee and answered a few union questions about how the policy would be implemented in specific work situations. Their answers were confusing, evasive, and misleading. We were led to believe, for example, that the policy would be implemented in the following year; suddenly, the Hospital revised the timeline for implementation without sufficient notice to the Union. When we asked, we got contradictory answers regarding which types of nurses would be covered by the policy. We also requested for e-mail messages or other records from bargaining-unit employees concerning the policy in order to gauge employee reactions to the policy. An employer must provide a union with accurate and relevant information for collective bargaining purposes (see NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 [38 LRRM 2042], 1956). It is true that managers revised the policy on the basis of union objections, but there was no bargaining and no “meeting of the minds” resulting in an agreement on a new policy. Rather, management presented its second version of the policy as a fait accompli, and unilaterally • (1) declared an impasse and • (2) implemented its policy. This “short-circuits” the bargaining process. Management’s actions violate Section 8(a)(5) of the LMRA, which reads, “It shall be an unfair labor practice for an employer … to refuse to bargain collectively with the representatives of his employees The labor–management committee is responsible for implementing the current collective bargaining agreement (CBA); bargaining over new provisions must be handled by negotiators designated by the Union and the Hospital. Thus, we maintain that no real “bargaining” occurred and to declare a bargaining impasse is erroneous. Further, the Hospital did not provide the Union with relevant information that we requested about the proposal and Hospital managers provided misleading and evasive information to the labor–management committee regarding when it would implement a new fluprevention policy. If the policy is viewed as a matter to be decided under the current contract, then it must be the subject to grievance arbitration. When the Union suggested taking the case to grievance arbitration, management objected, arguing that an arbitrator did not have jurisdiction to decide the matter based on the “Managerial Rights” and “Zipper” clauses of the contract. While the union did agree to a “Managerial Rights” clause (giving managers authority over certain administrative matters) the new fluprevention policy does not fall within the parameters of the items listed in that clause in the current contract. Similarly, a “Zipper” clause states that an arbitrator is supposed to interpret what is written in the contract, and to ignore “past practice” when deciding cases. Yet the Hospital attempts to use past practice by referring to a different rule—the Mercy Hospital Infection Prevention Policy—that existed prior to the current contract. One cannot claim that past practice justifies a policy and simultaneously claim that the Zipper Clause of the contract prevents the examination of past practice! Hospital managers are in error when they try to use contradictory logic to prevent an arbitrator from reviewing the new policy. An arbitrator clearly has authority to evaluate these new working conditions against the terms of the CBA. In summary, the Hospital cannot “have it both ways” declaring that it is not subject to arbitration but then not bargaining about the matter either. Finally, the Hospital claims it must implement this policy to conform to Centers for Disease Control (CDC) guidelines. However, CDC guidelines only require health care workers to wear a facemask when they are “within three feet” of the face of someone who has symptoms of a respiratory infection. Any additional measures are discretionary. These could adversely affect employees working conditions and, legally, should fall within the scope of collective bargaining. However, here at Mercy Hospital, one registered nurse in a critical care unit testified that, after enacting this policy, the Hospital required her to wear a facemask at all times except when she was either in the rest room, or the employee lunchroom adjacent to the Hospital cafeteria. This is clearly an excessive abuse of managerial authority. Management has not produced even one example of another hospital with such a draconian policy. Therefore, the argument that this policy is required by law is without merit and should be rejected. Hospital position The Hospital defends the new flu-prevention policy based on numerous legal principles. First, when the Union accepted the Managerial Rights clause (below) the Union waived its right to demand that the Hospital either bargain or arbitrate decisions that fall within the scope of that clause (see Provena St. Josepha Medical Center, 350 NLRB 808, 2007). The new flu-prevention policy falls within our Hospital’s right to set a “standard of performance,” “implement improved operational methods and procedures,” and “promulgate rules, regulations and personnel policies,” under the Managerial Rights provision of the CBA. The waiver is clear and unmistakable. The “Zipper” clause also ensures that this is a managerial prerogative because arbitrators cannot grasp at any loosely related precedent cases to undermine our authority in this matter. While the Managerial Rights clause does not specifically mention facemasks, it does mention “direct the nurses.” Procedures to “direct the nurses” at the time that the contract was ratified (prior to the new flu-prevention policy) included a rule unilaterally developed by Hospital administrators requiring facemasks and eye protection, “if there is close contact with the patient such that contact with sprayed blood, secretions, drainage, or excretions is anticipated. [Mercy Hospital Infection Prevention Policy]” The Union accepted Hospital authority to devise that rule. Therefore, when combined with the Managerial Rights clause, it is obvious that this prior acceptance of Hospital rulemaking authority means that the Union has waived any right to demand that the Hospital negotiate or arbitrate any similar type of facemask “personnel policy” that “sets a standard of performance” and “directs the nurses.” Second, federal law requires the Hospital to develop effective policies to control infection and communicable diseases, including influenza. As the Union admits, hospitals have discretion as to what policies they develop to best implement CDC requirements; we believe that we have developed a reasonable policy that minimizes both patient and employee exposure to the flu. Third, the care and protection of patients is at the core of what a hospital does. The prevention of influenza falls within a Hospital’s “core purpose” and is, therefore, exempt from mandatory bargaining (see Peerless Publications, 283 NLRB 334, 1987). Devising policies to prevent the spread of diseases among patients and visitors represents a fundamental business decision. In First National Maintenance v. NLRB, 452 NLRB 666 (1981), the U.S. Supreme Court ruled that managers do not necessarily have to bargain over fundamental business decisions. This policy identifies steps that health care workers must take to stop the spread of the flu among vulnerable populations and they are not negotiable simply to satisfy the comfort of certain nurses who refuse to be vaccinated. Under these circumstances an employer does not have a duty to bargain with its labor union over this type of fundamental business decision. Finally, while not required to either bargain or arbitrate the new policy, management did, in effect, voluntarily discuss in good faith the new policy with the Union via the labor–management committee. Under the LMRA, an employer must notify the employees collective bargaining representative and afford that representative an opportunity to discuss a proposed change in working conditions prior to its implementation (see NLRB v. Katz, 369 U.S. 736, 1962). We did this, even though the union had waived its right to bargain, and we modified the initial policy based on Union objections. By contrast, the Union showed no flexibility in its position and now even denies that the labor–management committee was a proper forum for such discussion. If anyone is guilty of bargaining in bad faith, it is the Union. We reached an impasse over this matter. Given that we were within our rights based on the other three reasons, described above, we chose to implement our “last and final offer.” As for the charge that we were evasive, the union information request was irrelevant (they can easily poll their own members to gauge their sentiment) and excessive (requiring an examination of all correspondence, phone message logs, and e-mails from all nurses to see which mentioned the flu policy). Management is not legally obligated to comply with overly burdensome or irrelevant information requests (Ethicon and Local 630, SEIU, Case 22-CA-089085, 360 NLRB 104, 2014). Yes, the date for implementing the new policy was moved. The flu doesn’t wait for labor–management negotiation procedures and when the current year’s flu season appeared to be more severe than anticipated, we revised the timetable to implement it this year rather than wait a full year. We are not legally liable because a Union officer is offended that we didn’t get his permission prior to doing our duty as a health care institution. Relevant Contract Clause: “Managerial Rights” The Union recognizes the right of the Hospital to operate and manage the Hospital, including but not limited to the right to require standards of performance and … to direct the nurses … to determine the materials and equipment to be used; to implement improved operational methods and procedures … to discipline, demote or discharge nurses for just cause … and to promulgate rules, regulations and personnel policies…. Questions 1. Analyze the arguments over whether the two parties “bargained” Did management bargain in good faith with the union over the policy? Did they “bargain to impasse?” If so, does that give management the right to unilaterally implement its “last offer?” 2. Was management required to develop this new policy by the CDC? Did that trump labor-management relations considerations? Explain your reasoning. 3. Using a database (e.g., Bloomberg BNA’s Labor & Employment Law Resource Center), look at the Peerless and First National Maintenance cases. Evaluate management’s argument that the flu-prevention policy is a “core business” decision in light of those case decisions. 4. Was management required to take this case to grievance arbitration? Explain your reasoning, considering the other precedent cases cited 6-2. Classification of a Bargaining Subject The company and union have had a bargaining relationship for more than 20 years. On July 11, bargaining unit member Allan Engle was performing his assigned work duties of cleaning the bathroom on the second floor of the company’s administrative building when he glanced up and observed a camera approximately 6 to 8 feet away located in an air vent and pointed directly at him. Engle reported his discovery to three other bargaining unit members, including union steward Luther Hall, who went to the second-floor bathroom in question and confirmed that the hidden camera was there. The following day the local union president was notified, but when she went to investigate, the hidden camera had been removed. On July 15, local union president Wanda Jackson was asked to meet with the company’s HR manager Susan Albright. Albright asked Jackson if she had heard about the camera that was discovered in the sanitation department’s restroom. Albright went on to say that the camera had been installed by the company because of a reported theft problem in that area, and the company’s legal counsel had advised her that it was lawful as long as the company had a legitimate business reason for doing so. Albright stated that once the camera had been discovered and union members appeared irate over the issue, the camera was immediately removed by management. Local union president Jackson believed the company could have accomplished its theft investigation through less intrusive means, and the union did not approve of management’s invasion of employees’ privacy. The union sent a letter to the company, dated August 1, indicating that an internal investigation by union members had also uncovered hidden cameras being used in the employees physical fitness room. On August 16, Jackson sent a hand-delivered letter to HR manager Albright demanding that the company bargain over the subject of video camera use in the workplace. The company refused to bargain over the subject, whereupon the union filed an unfair labor practice charge, alleging that the company’s action violated Section 8 (a)(5) and (1) of the LMRA, as amended. Positions of the Parties The union argues that the use of surveillance cameras in the workplace for providing evidence of work-rule violations by employees, for which they could be subject to discipline or discharge, is clearly an issue that is germane to the working environment and job security interests of union members. Therefore, the union believes management has a legal duty to bargain in good faith, upon request, over issues such as the number and location of video cameras within the workplace. Other issues over which bargaining unit members might have an interest in bargaining include whether employees will be given prior notice that their conduct may be subject to filming; who will have access to the video recordings made; for what purposes the video recordings may be used; and the circumstances under which the cameras can be required to be removed. The company essentially makes two arguments. First, the company believes it has an absolute right to engage in actions (like using cameras) to protect the legitimate business-related interests of the ownership. The company noted that it had for many years used 17 video cameras located both inside and outside company buildings to observe activity for protecting company property from theft or damage and to discourage other work-rule violations (e.g., drug use, sleeping on the job). These 17 cameras were in plain sight, and their existence had been known to the union’s membership for many years without any prior objection from the union. In recent years, 11 additional hidden video cameras had been installed inside the company to observe specific areas where employee misconduct was suspected. To require management to bargain in advance over the use or placement of such surveillance equipment would significantly reduce the effectiveness of this method of monitoring employee conduct on the employer’s premises. Second, management argues that even if the Board were to find that a duty to bargain existed, based on the circumstances in this case, the union waived its right to bargain over the subject of surveillance cameras. The company points to the length of time it has used video cameras without any objection by the union as evidence that the union has acquiesced in this practice and essentially acknowledged management’s right to use surveillance cameras for legitimate business reasons. The company acknowledges that the union has a right to file a contractual grievance over any alleged misuse or abuse of surveillance methods leading to a lack of just cause for disciplinary or discharge action against a bargaining unit member. However, the right to grieve a management discipline or discharge decision is not equivalent to a right to require management to bargain, in advance, over the right to use camera surveillance as a legitimate investigatory technique. Questions 1. What is a mandatory subject of bargaining? 2. Can a union waive its right to bargain over a mandatory subject of bargaining? 3. Was management’s refusal to bargain over the subject of surveillance camera usage in the workplace a violation of the duty to bargain in good faith under the LMRA, as amended? If so, what should be the appropriate remedy? Discuss the merits of the parties’ respective positions in this case. 5-3. Are the Field Supervisors “Supervisors” Under the National Labor Relations Act (NLRA)? The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 85 ballots cast for, and 80 ballots cast against, the Union, with 2 challenged ballots, a number of insufficient to affect the outcome of the election. The Employer provides digital television services to residential and commercial customers. At its Rancho, AZ facility, the Employer employs approximately 215 employees in the following classifications: field technicians, warehouse employees, and dispatchers. The vast majority of these employees are field technicians, who install or repair digital equipment at customers’ locations. In addition, the Employer employs a site manager, 3 operations managers, and 22 field supervisors. Of the 22 field supervisors, 13 are designed “field supervisors with a team” [hereinafter referred to as “field supervisors”], and 9 are designated “field supervisors without a team.” Each field supervisor oversees a team of approximately 10 to 15 field technicians. In contrast, “field supervisors without a team do not oversee anyone; rather, they primarily perform installation and repair work on complex jobs or jobs for important customers. Field supervisors respond to their team members’ telephone calls seeking answers to technical questions, requesting additional equipment, or reporting problems with particular job assignments (e.g., a customer is unavailable or a site is inaccessible). Field supervisors monitor the productivity of the field technicians on their team, examine their work, and inspect their vehicles. Field supervisors have the authority to give verbal warnings to technicians for performance issues or for tardiness, such as being late to a team meeting. Such verbal counselings are documented by field supervisors in “manager notes,” which are not reviewed by management and not retained in employees’ personnel files. If a field supervisor determines that a technician’s performance or infraction warrants more than a verbal counseling, he has the authority to initiate the disciplinary process associated with an employee consultation form (ECF). Field supervisors do not have the authority to prepare and issue ECFs directly to technicians; rather, ECFs are subject to management review. More specifically after a field supervisor prepares a draft ECF, the ECF is reviewed, first, by the operations manager to whom the field supervisor reports; next, by the site manager, and, finally, by the human resources department. At each stage of review, the reviewer may alter the language of the ECF, change the proposed level of discipline, or decide that the ECF should not be issued. Following that review, the field supervisor meets with the technician to present and explain the ECF. The field supervisor thereafter affords the technician the opportunity to set forth his version of events, or add other comments, on the ECF form. Finally, the field supervisor asks the technician to sign the ECF form and then signs it himself, after which the ECF is placed in the employee’s personnel file. Section 2(11) of the Act defines a “supervisor” as Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Questions 1. If the NLRB decides that the field supervisors are “supervisors” under the National Labor Relations Act, what does the NLRB do about the representation election? 2. Are the field supervisors “supervisors” under the NLRA? 3. How should the NLRB rule on the field supervisors? 4. How should the NLRB rule in the case of the election? Why?
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National Labour Relations Act
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22/10/2021
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National Labor Relations Act
1. If the NLRB decides that the field supervisors are “supervisors” under the National
Labor Relations Act, what does the NLRB do about the representation election?
The National Labor Relations Board (NLRB) is a government agency that has the power
to protect employees' rights concerning their choice of whether to form unions as their
bargaining representatives. Under the National Labor Relations Act (NLRA) the employees
have the right to collective bargaining through their preferred representatives. A party may file a
petition with the NLRB to perform a closed ballot election to decide whether the current
representative can represent or continue executing his/her roles on behalf of a unit of workers.
An RC petition is filled by the workers' union to be certified as the employee bargaining
representative while an RD petition is filed by workers seeking to remove the existing
recognized union as their collective bargaining representative. An RM petition can be filed by an
employer seeking an election in the event individuals or unions seek recognition as the workers'
collective bargaining representative. Also, an RM petition can be filed when there is a reasonable
belief that the existing recognized union has lost its mandate and the claim is supported by
objective deliberations.
The NLRB will authorize a representation election if union the majority of employees
want to select and form a union. The workers can select the union if at minimum thirty percent of
the employees sign a petition asking for a union. The NLRB will perform an election and if the
majority of the voters select the union, the NLRB will proceed with certifying the union as the
workers’ representative for collective bargaining. Conducting an election is the only way
workers’ union can become a representative of the employees (Dannin, 2006). It follows that the
employer may voluntarily recognize a workers' union based on the usually signed union-

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authorization cards as the evidence that most of the workers want it to stand for them. Upon
recognizing or certifying the union, the employer must bargain the employees’ terms and
conditions of employment with the union representative. However, this may not apply to every
industry; some industries like construction require the application of special rules.
2. Are the field supervisors “supervisors” under the NLRA?
The la...


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