Local Rx: Developing Return-to-Work Programs in Unionized Companies: Collective Bargaining Obligations, Labor Contract Requirements and Uncooperative Unions Can Be Hindrances for a Unionized Company That Is Trying to Develop a Return-to-Work Program to Manage Workers Compensation Costs

By Shafer, Rebecca A. | Risk Management, July-August 2009 | Go to article overview

Local Rx: Developing Return-to-Work Programs in Unionized Companies: Collective Bargaining Obligations, Labor Contract Requirements and Uncooperative Unions Can Be Hindrances for a Unionized Company That Is Trying to Develop a Return-to-Work Program to Manage Workers Compensation Costs


Shafer, Rebecca A., Risk Management


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.

[ILLUSTRATION OMITTED]

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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Local Rx: Developing Return-to-Work Programs in Unionized Companies: Collective Bargaining Obligations, Labor Contract Requirements and Uncooperative Unions Can Be Hindrances for a Unionized Company That Is Trying to Develop a Return-to-Work Program to Manage Workers Compensation Costs
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.