response to discussion questions 3

I need you to respond to the two discussions questions below make sure you put post 1 or post 2 so I can know which questions to attached it too. Make it at least 200 word each for both post below.

Post 1

  1. What is a mandatory subject of bargaining?

Employers should know that the employee handbook, or other work rules or policies, may not alter certain terms that an employer must bargain over with the union. These terms are called “mandatory subjects of bargaining”, and generally include provisions relating to “wages, hours, and other conditions of employment”.

Mandatory subjects are those that directly impact –wages, hours or working conditions (or terms and conditions of employment). Such subjects as hourly rates of pay, overtime pay, shift differentials, holiday pay, pensions, profit sharing plans, rental of company houses, grievance procedures, sick leave, work-rules, seniority and promotion, compulsory retirement age, and management rights clauses are examples of mandatory subjects of bargaining.

These are subjects over which the parties must bargain if a proposal is made by either party. This does not mean that the parties have to reach agreement on such proposals, but rather that they have to engage in the process of bargaining in good faith over the subject. Mandatory subjects may be bargained to impasse. It is also legal to strike (or to lock-out) to obtain a mandatory subject of bargaining.

If management does not bargain over these subjects in good faith, then the employer has committed an “unfair labor practice. Issues that are indirectly related to the terms and conditions of employment are called permissive subjects of bargaining. On these subjects, the parties only negotiate if both agree.

  1. Can a union waive its right to bargain over a mandatory subject of bargaining?

A union can waive its right to bargain over a mandatory subject of bargaining. A zipper clause is a clause in an employment agreement in which both parties waive the right to demand bargaining on any matter not dealt with in the contract, regardless of whether that matter was contemplated when the contract was negotiated or signed. Past cases, including Provena Hospitals, 350 NLRB No. 64 (August 16, 2007) and California Newspapers, 350 NLRB No. 89 (September 10, 2007) the NLRB found that the “zipper clause” language did not constitute a clear and unmistakable waiver of an employer’s right to propose policies that were not listed in the bargaining agreement. Normally, absent contradictory or limiting provision in the contract, this can be accomplished by affording the union a reasonable period to consider a new rule. Notice should always be in writing, and the union should be given a copy of the proposed new rule and notice of its proposed effective date. If the union fails to demand bargaining about the rule prior to its scheduled implementation date, the union will be deemed to have waived its right to bargain.

  1. Was management’s refusal to bargain over the subject of surveillance cameras usage in the workplace a violation for 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.

Further extending the concept of mandatory subjects of collective bargaining, the National Labor Relations Board held that an employer must bargain with a union over the installation and use of hidden surveillance cameras placed in an employer’s place of business. In Colgate-Palmolive Company, 323 NLRB 515 (1997), the Board held that the installation and use of such hidden cameras is sufficiently relevant to the work environment and outside the scope of managerial decisions lying at the core of entrepreneurial control as to require an employer to bargain over them.

Colgate-Palmolive and the union had negotiated various contracts over a twenty year collective bargaining relationship. Colgate had used surveillance cameras since 1981; some were in plain view, while others were hidden. According to the employer, the union had never requested to bargain over the placement or continued use of the cameras. Between 1990 and mid-1994, the company installed 11 new surveillance cameras, most in response to suspected employee theft and other misconduct.

In July 1994, an employee discovered a hidden camera in an air vent located in the men’s restroom. Although the company promptly removed the camera, the union filed a grievance regarding the placement of surveillance cameras in the facility. The company responded that while some cameras had been placed in plain view, others had been “strategically placed in other areas in response to reasonably suspected misconduct.” The union thereafter demanded to bargain over the placement and continued use of the hidden surveillance cameras. The company refused and the union filed an unfair labor practice charge with the NLRB.

The Board was seemingly unconcerned about the company’s legitimate interest in monitoring and preventing employee misconduct. The company had suggested to the Board that requiring it to bargain with the union regarding the placement of the hidden cameras would defeat the camera’s purpose. The Board, however, stated that the very existence of secret cameras is a term or condition of employment, and is thus a legitimate concern of the union. The Board took the position that any concerns regarding the extent to which the location or placement of the cameras was maintained as a secret was yet another proper subject of bargaining.

References

Corporate.findlaw.com › human-resources › NLRB Rules Employers Must Bargain Over Placement and Use of Hidden Surveillance Cameras

Harper, M. (1981, June). Union Waiver of Employee Rights under the NLRA: Part I. Retrieved June 12, 1981

Implementing Work Rules During the Term of a Collective Bargaining Agreement – The Law Firm of Faegre Baker Daniels. (2007, September 27). Retrieved August 12, 2016

Use of Video Surveillance Evidence to Support Employee Discipline – Maiello Brungo & Maiello. (2005). Retrieved August 12, 2016, from – articles/use-of-video-surveillance-evidence-to-support-employee-discipline/1196

Post 2

1.) A mandatory subject of bargaining is one of the three subjects of the collective bargaining agreement. It consists of those topics required by law and the NLRB and includes items like wages, overtime, bonuses, grievance procedures, safety and work practices, and seniority, as well as procedures for discharge, layoff, recall, or discipline (“Collective Bargaining,” n.d.). The law requires an employer to not make any changes in mandatory bargaining without providing the union prior notice and an opportunity to bargain over the desired change (“NLRB, n.d.).”

2.) A union can waive its right to bargain over a mandatory subject of bargaining. Under the NLRA, a union can waive its right during the term of a contract, but only if the waiver is “clear and unmistakable (Martin, 2012).” It must also satisfy the conditions of good faith. Employees have a legal duty to bargain in good faith with their employee’s representative to sign any collective bargaining agreement that has been reached (“NLRB, n.d.).

3.) Management’s refusal to bargain over the subject of surveillance camera usage in the workplace was a violation of the duty to bargain in good faith under the LMRA. Under this Act, both union and management organizations negotiate in good faith in an effort to voluntarily settle bargaining disputes (Holley, Ross, & Wolters, 2017).” There were two arguments in this case. First, the company believed it had the right to engage using cameras to protect the legitimate business-related interests of the ownership. Second, management argued that even if the Board found that a duty to bargain existed based on the circumstances, the union waived its right to bargain over the subject of surveillance cameras (Holley, Ross, & Wolters, 2017).” In contrast, the union believed that the use of surveillance cameras in the workplace was an invasion of employees’ privacy. The remedy to this problem is for the union to bargain hard, providing good faith has been sought to reach an agreement.

References

Bargaining in Good Faith with Employees’ Union Representative (Section 8(d) & 8(a)(5)). (n.d.). Retrieved from https://www.nlrb.gov/rights-we-protect/whats-law/e…

Martin, S. (2012). Understanding Mandatory and Permissive Subjects of Bargaining. Retrieved from https://www.icsom.org/senzasordino/2012/05/understanding-mandatory-permissive-subjects-bargaining/ (Links to an external site.)

What is a Collective Bargaining Agreement? (n.d.). Retrievied from https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/collectivebargainingagreement.aspx