BUS4046: Employee and Labor Relations

The NLRA categorizes subjects of collective bargaining into three types. Mandatory subjects are wages, hours, and other terms and conditions of employment — both parties must bargain in good faith over mandatory subjects if either raises them, and neither party may declare impasse and implement unilateral changes on a mandatory subject without first bargaining to genuine impasse. Permissive subjects (also called voluntary subjects) are subjects not directly related to mandatory terms — such as the size and composition of the management bargaining team, prices in the company cafeteria, or the location of the corporate headquarters. Either party may raise permissive subjects but cannot insist to impasse on them; the other party may refuse to bargain on permissive subjects without violating the good-faith requirement. Illegal subjects are those that would require either party to violate the law — a union cannot bargain for a closed shop (requiring union membership before hiring), and an employer cannot bargain for the right to discriminate in violation of Title VII. The most significant practical distinction is between mandatory and permissive: employers who make unilateral changes to mandatory subjects without bargaining have committed an unfair labor practice, while unilateral changes to permissive subjects (if they were never raised in bargaining) are generally lawful.

The grievance procedure is the contractually established process through which disputes over the interpretation or application of a collective bargaining agreement are resolved. A typical multi-step procedure: Step 1 — the employee and union steward meet with the immediate supervisor to discuss the complaint (usually within a specified number of days of the incident); Step 2 — if unresolved, the grievance is put in writing and reviewed by a higher-level supervisor and an HR representative; Step 3 — the grievance is reviewed by senior management and the union business agent or business representative; Step 4 — if still unresolved, the grievance goes to final and binding arbitration. An arbitrator (a neutral third party agreed upon by the parties, typically from the American Arbitration Association or FMCS panels) conducts a hearing, reviews evidence and arguments from both sides, and issues a written arbitration award that is enforceable in federal court. Arbitration is less expensive and faster than litigation, and the arbitrator's expertise in labor relations typically produces awards that reflect the practical realities of the employment relationship. The just cause standard governs most discipline and discharge cases in arbitration.

Section 7 of the NLRA protects employees' rights to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Concerted activity is the key concept: action by two or more employees (or by one employee on behalf of others with their knowledge or at their request) related to the terms and conditions of employment. This protection covers much more than formal union activity: two employees who jointly complain to management about a safety hazard are engaged in protected concerted activity; employees who discuss their wages with each other (even in a non-union workplace) are protected; an employee who posts on social media about poor working conditions with colleagues is potentially protected. The NLRB and courts have extended Section 7 protections to social media posts discussing working conditions, even when made outside of work hours. The practical implication for HR: policies that prohibit employees from discussing wages, disparaging the company, or engaging in "disruptive" behavior — if they could be read to chill protected concerted activity — may violate the NLRA even in non-union workplaces. Employer social media policies and confidentiality policies are frequent NLRB targets for precisely this reason.

Union organizing typically proceeds in stages. Initiation: employees contact a union (or a union organizer contacts employees), driven by a specific grievance or ongoing dissatisfaction. Card signing: the union collects authorization cards signed by employees indicating they want union representation; 30% of cards triggers an election petition, but unions typically seek 65%+ before filing to provide a cushion. NLRB petition and election: the union files for an election with the NLRB; an election is held (typically within 21 days) in the appropriate bargaining unit; a majority vote determines whether the union is certified. During an organizing campaign, the employer may: communicate its perspective on unionization, hold mandatory "captive audience" meetings to present management's views, share factual information about the costs of unionization, and campaign actively against certification. The employer may not: threaten employees with adverse consequences if the union is voted in (discharge, plant closure, reduction in benefits), interrogate employees about union sympathy, promise benefits conditional on voting against the union, or surveil union activity. These prohibited practices — threats, interrogation, promises, surveillance (TIPS) — constitute unfair labor practices that can result in the election being set aside or a bargaining order requiring the employer to recognize the union without an election.