By Shafer, Rebecca A.
Risk Management , Vol. 56, No. 6
Unions often oppose a return-to-work program until they can be convinced that it offers them something. Sometimes, employers facing this situation drop the idea completely, believing the obstacles are too great. The employer who gives up too easily, however, may be losing an opportunity to experience significant savings--and even improve union relations.
The National Labor Relations Act (NLRA) bargaining obligations are among the largest obstacles to developing a program in the unionized environment. One fundamental principle is that the union is the exclusive representative of employees, meaning that the employer is obligated to bargain collectively and in "good faith" over "wages, hours and other terms and conditions of employment." A refusal or failure to bargain in good faith with the union over mandatory items may result in an unfair labor practice charge under Section 8 of the NLRA.
Precisely where a return-to-work program falls within the context of these bargaining obligations is not always clear. For the most part, the union will argue that such a program is a mandatory subject of bargaining because it involves job assignments and hence is a "term or condition of employment." The contrary argument is that a decision to implement a return-to-work program lies at the core of the company's right to manage its business and is not a subject of bargaining.
That said, the union and the employer do not have to agree. The "good faith" bargaining obligation imposed by the NLRA requires only that the union and the employer "bargain in good faith." If the parties reach an impasse, the employer can normally implement a proposal, provided it is not a violation of the collective bargaining agreement.
The problem for most employers is whether such an impasse has been reached because the concept of bargaining in good faith is subjective. If the employer is found to have fallen short of this, an unfair labor practice judgment may follow and the employer action can then be reversed by the National Labor Relations Board.
In addition to the requirements under the NLRA, the collective bargaining agreement between the union and the employer may significantly limit employer action. Specific references to return-to-work programs are rare because they are still fairly recent phenomena. On the other hand, the collective bargaining agreement may contain significant restrictions on the employer's freedom to transfer employees, to create new job assignments or to modify seniority provisions. These restrictions make it difficult to implement a return-to-work program while such contract provisions are in effect.
"Past practices" may also be asserted by the union to disallow a return-to-work program. If the contractual provisions are not restrictive enough to disallow a return-to-work program, unions may assert the doctrine of "past practices." If the union can successfully demonstrate a past practice allowing employees to remain out of work, management may lose in arbitration if a return-to-work program is implemented without union cooperation.
After considering the obstacles employers face in implementing a return-to-work program in a unionized company, many wonder what solutions are available. Some employers give up, assuming there is nothing they can do to change such restrictions. But in today's competitive business environment, employers must be creative and determined in order to find a way around union restrictions.
1. Check for Management Rights
Review the collective bargaining agreement itself and determine the employer's "management rights." Every company has the right to manage the affairs of the business. Unless negotiated away, management normally has the right to determine products, services, methods and schedules of operations, including establishing company rules, maintaining discipline and promulgating reasonable workplace practices. …