SHRM-CP / SHRM-SCP Certification Exam: Organization - Employee and Labor Relations

Functional Area 9—Employee and Labor Relations
Here is SHRM’s BoCK definition: Employee and Labor Relations refers to any dealings between the organization and its employees regarding the terms and conditions of employment.

Human Resources Management as a functional area within employer organizations didn’t always exist in its current configuration. It began as a kinship department associated with accounting and was primarily responsible for taking care of payroll issues and for record keeping. From that it evolved into a labor relations department responsible for union interactions. In recent years HR has had responsibility for employee management legal compliance and today is involved in strategic issues of employee resource management.

Key Concepts
- Approaches to retaliation prevention
- Approaches to union-organization relations (e.g., collective bargaining, contract negotiation, contract administration process)
- Causes of and methods for preventing and addressing strikes, boycotts, and work stoppages
- Disciplinary procedures and approaches
- Employment rights, standards, and concepts (e.g., labor rights, living wage and fair concepts, standard workday), according to the International Labor Organization (ILO)
- Techniques for disciplinary investigations
- Techniques for grievance and complaint resolution
- Types and development of compliance and ethics programs (e.g., design, implementation, performance measures)
- Types and structures of organized labor (e.g., unions, works councils, trade union federations, other employee collectives)
- Types of alternative dispute resolution (ADR) (e.g., mediation, arbitration) and their advantages and disadvantages
- Unfair labor practices, according to the ILO
- Unionization approaches, methods, and management (e.g., acceptance, avoidance strategies)

The following are the proficiency indicators that SHRM has identified as key concepts:

The Employment Relationship
According to the government, people are either employees or not employees. That begs the question, “What is an employee?” A quick look in our glossary will reveal an employee is “A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed.”

Toward “Employee Relations”
Organizational culture is often defined, at least in part, by the type of employee relations programs that exist. We are talking about structured programs that are designed to help employees feel part of the organization in positive ways. Creating a positive culture is not a simple matter and is an essential influential factor for recruiting and retaining talent. HR devotes much effort and time to champion a positive culture with effective employee relations programs. The human resource department also serves as an employee advocate. Culture is defined by the way an organization treats its employees, customers, and others. It is also influenced by the way power is distributed within the organization and the amount of power employees sense they have. What follows is an overview of different types of employee relationship programs.

Employer and Employee Rights
Under the laws of the United States both employers and employees have rights related to their relationship.
 

Employer Rights Under the Law
Employers used to be able to treat employees in any way they wanted. That is what brought about the rise of labor unions. Unions protested ill treatment of workers and fought for employee benefits and wages. Over the decades, much of what the unions accomplished for their membership have been transported into laws that protect all employees, not just unionized workers. Equal Employment Opportunity (EEO) is a prime example. Employers may make their decisions about employees based on any factor that is job related. Things such as race, religion, sex, or national origin may no longer be considered in that decision-making process.

As things stand today, employers can do virtually anything they want as long as it doesn’t violate law or public policy. That includes the covenant of good faith and fair dealing. Employers are expected to give workers more consideration the longer they have served the employer. And all workers are due fair treatment. That is a constant expectation.
 

Intellectual Property
While there are some exceptions, the general rule is that employers own the rights to work-related copyrights, patents, and trademarks developed by employees even if the work was done on the employee’s own time. In the absence of written agreements to the contrary, employers are ordinarily the owners of such work products by their employees.
 

Employee Rights Under the Law
There are dozens of labor laws on the books today. They have been created to provide protections to employees in the workplace. You can scan the list of federal laws. Case laws (Appendix B) also bring influence to the subject. All U.S. employers are influenced in one way or another by these requirements.
Employees are usually given the “benefit of the doubt” when it comes to disciplinary treatment or complaint against an employer. Remember, they are always afforded consideration under the covenant of good faith and fair dealing. Employers must treat people fairly, even though they may be categorized as “employment at will” employees.
Employment at will is a form of employment relationship that has been amended over the years. Now, there are many restrictions to an employer’s termination of a worker without cause. And, fair treatment influences strongly employee attitudes and, in turn, production levels.
 

International Human Rights and Labor Standards
While the United States and other first-world countries lead the pack for employee rights, other countries also recognize the need to protect workers against inhumane treatment and bad employer conduct.

- International Labor Organization In 1919, the International Labor Organization (ILO) was created. It was later adopted by the United Nations as a component of that international body; 185 of 193 UN member states also belong to the ILO.35 There are four key principles of the ILO.
- Freedom of association and the effective recognition of the right to collective bargaining
- Elimination of all forms of forced or compulsory labor
- Effective abolition of child labor
- Elimination of discrimination in respect of employment and occupation

- Organisation for Economic Co-operation and Development (OECD) The OECD was formed in 1961 to stimulate economic progress and world trade. Current members are Australia, Austria, Belgium, Canada, Chile, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, South Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States. Member countries produce two-thirds of the world’s goods and services.36

By maintaining contact with many governmental and international agencies, such as the International Monetary Fund, the OECD has become a clearinghouse for a vast amount of economic data. It publishes hundreds of titles annually on a variety of subjects that include agriculture, scientific research, capital markets, tax structures, energy resources, lumber, air pollution, educational development, and development assistance.
- World Trade Organization (WTO) The WTO has been headquartered in Geneva, Switzerland, since its creation in January 1995. Its 161 member countries focus on global rules of trade between nations. Its main function is to ensure that trade flows as smoothly, predictably, and freely as possible.37
 

Treaties and Trade Agreements
Treaties are formal contracts between nations that, in the United States, must be approved by the U.S. Senate before they become binding on the government. Trade agreements are administrative arrangements generally made by the executive branch of the government that do not require approval of the U.S. Senate. Under international law, both types of agreement are considered binding, even though we only see treaties as enforceable under our laws.
 

Relevant Employment Laws
Federal laws applying to employee relations include the following:

- Data privacy Privacy of employee-related data is a prime concern these days, especially with weekly revelations about computer hackers breaking into one database after another. And, the grand prize of attributed to Chinese government groups. It is among a growing list of invasions into personal information collections maintained by employers and governments around the country.

Some of the key requirements are shown here:

- Separation of employment Separation of employment includes every form of voluntary and involuntary employment termination category. Voluntary separations include resignation, retirement, and job abandonment. Involuntary separations include death, discharge, layoff/downsizing, or incapacitation.
 

Employment Contracts
Employment relationships can exist under a contract or without a contract. Contracts can exist either as oral agreements or as written documents. Either form of agreement will obligate each party to certain performance behaviors. Employers will be obligated for certain compensation, and employees will be obligated for certain work. Contracts spell out how the contract can be ended, meaning how the employment can come to an end. Usually, there is a requirement for a “just cause” before an employer can dismiss a contractual employee.

Written employment contracts will typically contain several sections, such as the following:
- Job description Lists duties and responsibilities.
- Statement of authority Details expenditure limits, hiring authority, and what conditions require approval of the board of directors or other authority.
- Agreement length Identifies the beginning and ending dates of the contract.
- Performance requirements Documents performance requirements for compensation increases or bonuses. These can include revenue targets, sales targets, or other measurable performance standard.
- Compensation and benefits Details the base rate of pay, pay calculation (hourly, salaried, commissioned), how increases will be achieved, how bonuses will be achieved, how compensation will be paid (cash, stock, bonds, future payments), pension program (company and employee contribution scheme), healthcare benefits programs (medical, dental, vision, individual or family), perks (company car, airplane, driver, concierge, entertainment tickets for concerts and sporting events), and any other compensation condition upon which the relationship will be based.
- Other important issues Can include agreements about who owns copyright and patent rights to things produced by the employee during the contract period, nondisclosure agreements for employer intellectual property protection, and noncompete provisions.
- Termination provisions Can include personal behavior and ethics requirements and other reasons or “causes” for separating the employee from the organization. In many contracts these reasons are specified in great detail. If there is to be a “buyout” for time remaining on the agreement, that should be specified here. “Golden parachutes” are often large sums representing the buyout for early separation such as in a merger.
 

Oral Employment Contracts
Oral employment contracts can be expressly made, or made by mistake, and still be valid and enforceable, much to the dismay of employers who fall into those traps.
Oral contracts can be created in some unusual circumstances. Supervisors and managers can inadvertently enter into oral contracts and should receive training to help them avoid such pitfalls.

The following are some examples of oral contracts:
- An in-house recruiter tells a job applicant that this is a great organization and anyone who keeps their record clean “can expect to have a lifelong career here.” Within a year, the new employee’s division was closed, and all employees were laid off.
- A manager tells a subordinate that “nothing short of stealing from the company” will be cause for termination. Within a year the employee was terminated for inadequate performance.
- A manager tells a new employee, “Sure, you can bet that you’ll be here at least five years, so go ahead and sell your house in another state and move your family here.” The employee was part of a downsizing 6 months later.
- A supervisor says to an employee, “Don’t worry about your performance rating. Nobody pays any attention to them here anyway.” Within a few months the employee was terminated because of poor performance.
 

At-Will Employment
“During the late 19th and early 20th centuries a new set of legal rules emerged in the United States governing the relationship between employer and employee. These rules were called ‘employment-at-will’ and provided that, absent express agreement to the contrary, employment was for an indefinite time and could be terminated by either party, for any reason, or for no reason at all. This doctrine is a unique product of American common law, created by state and federal judges, and continues, substantially unchanged, until today.”38
Currently, employment at will exists in most states, and it is state law that usually governs these employee relationships. In other countries, using different legal systems, employment may be terminated only for cause. That means employers must justify their decisions to end the employment relationship with someone. The behavior of the individual is usually the justification.
Employment at will exists only in the absence of a contract that details the employment agreement between employer and employee. Those contracts can be related to a group, as union memorandums of understanding, or to individuals, such as chief executive officers. Since roughly the 1930s, American courts have been instrumental in identifying conditions under which employers may not arbitrarily discharge people, even though they are at-will employees. Some of those restrictions include the following:
- Civil service rules
- Constitutional protections
- Protections against employment discrimination (based on race, color, national origin, religion, sex, age, genetic information, physical disability, mental disability, pregnancy, veteran status, use of Family and Medical Leave)
- Whistle-blowing protections

Employee Relationship Strategy
Employee relations are methods for managing the employer-employee relationship. Strategically managing that relationship calls for consideration of four key elements.
- Union or nonunion status
- Communication
- Company culture
- Compensation and benefits
 

Union Acceptance/Avoidance Strategies
Employers that have not been unionized have a choice about how they will approach the idea of union organizing. It is possible that an employer would welcome or be neutral toward the idea. Where an employer believes the organization could be well served by having a single voice in representing the employee body, support for unionizing its workforce may be a positive approach. However, if the employer believes that a union would bring lack of flexibility and stringent work rules, then avoidance could be the path of choice.
Accepting the notion of worker organization efforts is rather simple. It could even represent encouragement for the effort. Strategically, the employer would make it known that it supports the union-organizing effort.
Employers that believe unions would not add substantially to their employee management programs will want to use strategies that are intended to show workers that unions are not necessary for their satisfaction on the job. Strategic programs such as honest open-door policies, sincere management attention to employee complaints, promotion from within, employee training programs, employee satisfaction surveys (with appropriate follow-up), competitive benefit programs and wage schedules, and similar policies can help deflect union-organizing efforts.
 

Global ER Strategies
Each national jurisdiction has its own legal requirements that act as a minimum threshold for employer-employee treatment. Once those minimums have been reached, it is appropriate for employers to ask whether their policies should go beyond to provide enhanced treatment benefits. Perhaps those are insurance programs such as medical, dental, and vision coverage. Sometimes the strategies include higher wage schedules or paid time-off limits than absolutely required. Strategic use of employee benefits can be a strong argument against union-organizing success. Trying to find an appropriate treatment for employee values that can vary by culture in each different country is also a strategic application of union-prevention efforts.

Employee Recognition and Reward
The larger an organization grows, the greater the likelihood that its recognition programs will be structured. In small organizations, recognition can be given in many forms, often as events unfold and accomplishments are achieved.
 

Forms of Rewards
Employee recognition can include service anniversary awards (watches, clocks, plaques, certificates, pins), employee-of-the-month awards (designated parking space, plaque or bulletin board posting, special benefit like a dinner gift certificate), cost savings suggestions, sales achievement awards, team achievement awards, or individual achievement awards. Obviously, that is not an exhaustive list. You can add others and apply them as your organization finds a fit between the recognition and the accomplishment.
 

Recognition Systems
Employee recognition systems can be either formal or informal. Formal recognition systems involve programs that are designed to address systemic employee issues such as service awards, retirement awards, and employee-of-the-month recognitions. Informal recognition systems involve supervisor or manager spotlighting of employee accomplishments at an employee meeting or supervisor acknowledgment of an employee accomplishment by giving an extra paid day off.
 

Recognition and Rewards in Global Organizations
Cultural differences from one country to another mean that the esteem (or value) placed on specific rewards will also vary from one country to another. It may be that employees think a few extra days off are wonderful if they are in the United States. In China, they may place greater value on a free month of health benefits for their extended family. Before offering a recognition to employees in another country, it is a good idea to be sure the recognition will be perceived as positively as it is by the manager offering it.
 

Feedback as Reward and Recognition
Culture doesn’t usually get in the way of a supervisor telling an employee “thank you” for a job well done. Almost everyone, regardless of their location, feels good when receiving positive reinforcement for their work performance. Managers and supervisors who make it a habit to give thanks to employees when it is truly deserved will find that it is quite the motivator. Everyone likes to feel appreciated.

Employee Communication
Here again, there are formal and informal communication systems. Formal systems include an employee bulletin or monthly newsletter and daily intranet blog updates for company work sites. Informal communication systems can involve manager distribution of periodic e-mails updating workers on specific happenings in the realm of employee relations. Employees are always interested in the subjects of benefits, customer feedback, and new customer contract activity. When the company is given an award for safety accomplishments or production goal achievements, the workers want to know about it. Being sure to communicate those things to employees is often the job of the HR manager.

Including Managers and Supervisors
As important as general employee communication, special communication to supervisors and managers cannot be overlooked. When new policies are issued, for example, managers and supervisors are interested because they will have to implement the policies and answer questions from employees about daily implications. It is not uncommon in larger organizations for managers and supervisors to participate in special meetings just for them. They are often venues for these organizational leaders to learn and provide feedback to senior management about what company policies and programs are working and what are not. Communication flows both directions in such a gathering.

Third-Party Influences on Employee Relations
When we think of employee relationships, we normally consider only the two primary parties: employers and employees. There are times, however, when third parties are involved in that process of conducting employee relationships.

Complex Labor Environments
Even in nonunion environments, there can be third parties in the employment relationship. Often those third parties are government agents responsible for enforcing legal compliance requirements having to do with things such as safety, child labor, equal employment opportunity, or workplace security. Things get complicated when labor unions are active representatives of employees in a portion of the organization and there are no unions in other parts of the company.

Labor or Trade Unions
Unions are groups of employees designated to represent interests of those employees through formal negotiation processes. They are responsible for conducting grievances as employee representatives and for protecting against an employer’s failure to follow termination procedures.
 

Labor/Trade Union Strategies
Employers may find it an advantage to have a union represent their workers. Or, they may not want to have to deal with the regimental procedures necessary once a union gains a foothold in the organization. Either way, having a strategy for supporting or avoiding union representation is worthwhile.
 

Increasing Formal Internationalization of Unions
These days, unions are more often international entities such as the International Brotherhood of ____________ (you can fill in the blank with just about any name). So many employer organizations are multinational that unions are forced into the same mode of operation.
 

Pressing for National and International Compliance
Legal compliance requirements for unions vary from one country to another. It is incumbent upon employers who work with international unions to understand the requirements of each country in which they have represented employees.
 

Implementing International Framework Agreements
“An international (or global) framework agreement (IFA) is an instrument negotiated between a multinational enterprise and a Global Union Federation (GUF) in order to establish an ongoing relationship between the parties and ensure that the company respects the same standards in all the countries where it operates… Most framework agreements include follow-up mechanisms involving trade union participation. These mechanisms include specific actions on the part of management and workers’ representatives, such as company-wide dissemination (and translation, where necessary) of the agreement or the development of joint training programs. Some agreements provide for joint missions by the relevant national trade union and global union federation in order to carry out on-site monitoring of the implementation of the agreement. Most of them also include mechanisms for the global union federation to raise a case if the company violates the terms of the agreement.”
 

Forming Networks and Alliances
The international labor-organizing effort is relatively new. It is building bridges between union organizations in individual countries to create international organizations with a wider influence. And the organizing effort continues to expand into new countries where there have not yet been union representation of workers. In Ireland, for example, the Irish Congress of Trade Unions is the single umbrella for trade unions in both Northern Ireland and Ireland.
 

Understanding Individual Labor or Trade Unions
Each trade union is organized to assist the members it attracts. Those members have a unifying interest in their employment relationship with one or more employers. In the case of trade workers (carpenters, electricians, plumbers), journey-level individuals can work for any union-represented employer. In the case of labor unions not in the trades (electrical workers, telephone workers, state government workers), employees usually work for a single employer doing similar types of work. For example, the Communication Workers of America (CWA) represents technicians in the telephone companies. The Service Employees International Union (SEIU) represents workers in health care (nurses, doctors, lab technicians, home health workers), property services (cleaning, security, building maintenance), and public service workers (bus drivers, state government workers, school workers).
 

Managing the Union Relationship
Traditionally, unions have been seen as adversaries of management. These days, more focus is being placed on cooperation between the two. That means employee representatives are often invited to participate in the decision-making process along with managers and supervisors. When given an active participative role, unions can become allies of employers.
 

Work Councils
Originally in Germany beginning in the 1920s, these groups have been common in other European countries since the late 1990s. Either the employer or employees can request formation of a work council. Member states are to provide for the right to establish European Works Councils in companies or groups of companies with at least five employees in the EU. Through work councils, workers are informed and consulted by management on the progress of the business and any significant decision at European level that could affect their employment or working conditions. Members are usually elected from the employee body. Work councils focus their attention on issues dealing with employee status and rights.
 

Work Council Structures
Work councils are composed of members from the employer’s body of workers. In many organizations, those are also union representatives. Typically, a work council can be established once there are five employees in the employer’s organization. The following table is an example of how representation of employees can be composed. Notice that there are always an odd number of members to facilitate achievement of a simple majority vote on issues. Senior management are not party to the work council.

 

Codetermination
In organizations having systems of codetermination, employees are given seats on boards of directors and/or supervisory boards. Policy decisions related to employee treatment are addressed by the board of directors with this system in place.
HR and Work Councils
Work councils are sometimes used in multinational corporations outside Europe. Oracle is one example. At Oracle, line managers and HR managers can make recommendations for hiring and firing, but the work council holds the approval stamp. In the United States, establishing work councils in the absence of labor unions is tricky. The National Labor Relations Act prohibits “company unions,” which is sometimes a label pinned on work councils.

Governments and Other Groups
Government laws and regulations weigh heavily on employee relations in today’s workplace. In every country, laws govern minimum wage, paid time-off allocations or use, safety and health issues, retirement programs, and union relations. It is incumbent upon HR managers to identify the specific legal requirements in each country where they have employees. Compliance, though complicated, can be critical to employee satisfaction.

Collective Bargaining
Collective bargaining is an issue that is generally governed by law. Regulations that implement the law specify how employers are to respond to employee union-organizing activities and ongoing negotiations for contract content. Collective bargaining is negotiation involving how employee relations will be conducted in the employer organization. It results in a formal contract document or resolution of formal workplace practice and procedures.
 

Contract Negotiation Process
Negotiating a contract requires identifying the subjects to be addressed by the agreement. Then, each party prepares its preferred position on each subject. Then the process of comparing those positions begins. Often, dollars are attached to contract subjects. For example, the length of work shift, the amount of overtime to be paid, and the cost of health care benefits all can be represented by dollar values. If the union wants greater benefits for its members, a dollar value can be assigned to that increase. Employers argue budget restraint and use dollar values to justify their reasoning.

According to the Negotiation Board, there are eight steps in the negotiation process. Here is a list of the process step flow in contract negotiations:
- Step 1, Prepare Do your research ahead of time so that you know your opponent and you know what you want from the negotiation.
- Step 2, Open Let the other side know what you want and let them tell you what they want.
- Step 3, Argue Back up your case with evidence and uncover defects in your opponent’s argument.
- Step 4, Explore Search for common ground and agreeable outcomes.
- Step 5, Signal Show that you are ready to reach an agreement.
- Step 6, Package Put together different acceptable options for both parties.
- Step 7, Close Come to an agreement and finalize the negotiation.
- Step 8, Sustain Ensure that their side, and yours, follows through with the negotiated agreement.
 

HR’s Role in Contract Negotiations
In large organizations, a segment of the HR department will be responsible for labor relations. That responsibility would include duties associated with contract negotiations. In smaller organizations, the HR manager may be the only person in the HR department. Then, that manager is responsible for contract negotiations. Often, there is direct support from the legal department or external legal counsel.
Each component of a contract agreement can be assigned a cost in dollars. Adding all of those component costs can produce the total contract value. For example, health benefits will cost several hundreds of dollars each month to cover an employee and family members. The employer can agree to cover a percentage of that cost, with the balance being paid by the employee. A union will ask for more employer contribution to that formula. And, should the employer agree, the increased contribution can be assigned an incremental cost increase value. Adding that to other cost increases, such as increased pay schedules and overtime rates, will produce a total increase of contract costs. Each time a new proposal is made or received, a cost analysis should be made to determine the budgetary impact. Some costs will be perpetual, such as an increase in pay rates. Other costs can be limited to one time only, such as special bonus payments. There are advantages and disadvantages to costs that will be contained to one period of time (year) versus continuing into future periods of time. Assembling this data is usually the responsibility of the HR manager.

Contract Administration and Enforcement
The thought that only large employers have union contracts is a myth. Many small employers work with union agreements. That is often the case in the construction industry, for example. Operating engineers, teamsters, and laborers, among other unions, will sometimes have agreements with governmental entities that only union-represented workers will be employed on projects funded by that entity. This is common practice for cities and counties, particularly in geographical areas where labor organizations are a strong political influence.
 

Memoranda of understanding (MOU) and collective bargaining agreements (CBAs) are the written contracts between employer and unions. MOU is a term usually found in the public sector, and CBA is a term normally used in the private sector.
Whether the employer is large or small, someone in the organization must be assigned the responsibility for coordinating work through unions and ensuring the employer abides by all the requirements of the union contract. Sometimes unions require that they process all job requisitions from their employer counterparts. Hiring through union “hiring halls,” as it is sometimes called, is the practice of notifying the union of a job opening and receiving a qualified union member as the new hire designee. It is a simple process that can provide staffing quickly, often with only one telephone call or e-mail conveying the employment requisition.
Large employers will have labor relations staff groups that are assigned responsibility for day-to-day interactions with labor unions, as well as carrying responsibility for contract negotiations. Small employers will rely on a part-time job duty assignment for the labor relations function because it doesn’t require full-time attention. Small employers sometimes rely on their labor attorneys to fill the role of contract negotiator and grievance handler, while job requisitions are processed part-time by another company employee.
 

Handling Grievances
Employee grievances can relate to any subject but always indicate a feeling of upset or discontent about something going on in the workplace, such as the way they are being treated, organizational policies, and the big category of “fairness.”
In union-represented organizations, the union contract (memorandum of understanding) will usually explain what steps exist in the grievance procedure. They are designed to permit union members the opportunity to formally protest application of any contract provision. Most will deal with working conditions such as hours of work, how shifts are assigned, or seniority practices.
In nonunion organizations, employee handbooks will often detail the steps for submitting and processing an employee complaint.
Note that rarely will such complaints be called grievances in nonunion groups. That is usually a term reserved for union contracts.

Here are the typical grievance-handling steps you will find in most organizations:
1.A written complaint The employee describes in writing what is causing the upset or discontent.
2.Supervisor-level discussion The employee’s supervisor (or another group’s supervisor) will discuss the complaint with the employee, reviewing facts and reasons for the decision that resulted in the complaint. If the explanation is sufficient, the grievance ends here. If the employee presents information that causes the decision to be changed, the grievance can also end here.
3.Management- or HR-level discussion If the supervisor and employee can’t agree, the next discussion is with a management person or the human resource department. If an agreement is reached, the matter is settled. If not, it can go to a final step with senior management.
4.Senior management The final management step is usually with a senior management official. Sometimes that is the chief executive officer, but it can be with any other designated official who has authority to make any adjustments or decisions deemed appropriate in settling the grievance.
5.Mediation or arbitration Contracts usually specify whether arbitration will be used to resolve union grievances. Ordinarily, employers and unions will split the cost of hiring an arbitrator. Contracts will also specify the procedures to be used in selecting an arbitrator.

When the Employee Relationship Falters
Things do not always move smoothly in an employment organization. There are times when management and employees do not see things in the same way. Sometimes, feelings get hurt, and people feel like they are being treated unfairly. Whether these conditions constitute a violation of union contract or company policy or are simply examples of miscommunication, they are very real for employees.

Preserving the Relationship at Difficult Times
When disagreements occur and upsets happen, HR managers should focus on preserving their relationships with union officials. The worst thing that can come from disagreements is failure of the communication channel. If parties cease to talk with one another, it is impossible to get back to a normal working relationship. Sometimes simply agreeing to disagree and move to the next step in the resolution process is the best that can be hoped for. But it carries with it agreement to continue working toward cooperation in other areas.

Industrial Actions and Unfair Labor Practices
Either management or union can initiate retaliatory action in the workplace as a response to the other party’s failure to agree at the bargaining table. Industrial actions are designed to get the attention of the opposite party. Unfair labor practices are those activities that violate the National Labor Relations Act (NLRA).
 

Industrial Actions
Industrial actions can be initiated by either employer or employees and almost always result from the breakdown in the negotiation process.
Employee-initiated industrial actions can include work slowdowns (where production rates are decreased from normal), work stoppage (where a portion of the facility stops its production), and “sickouts” (orchestrated absences by calling in “sick” such as the “blue flu” when police officers fail to report for duty).
Employer-initiated industrial action usually involves lockouts, when employees are prevented from reporting to work because the employer has locked the facility or otherwise barred their access to the work area.
 

Unfair Labor Practices
The National Labor Relations Act (NLRA) explains that unfair labor practices can be blamed on either employers or labor unions. Common among issues evoking such claims are those revolving around the process of union elections. Unions commonly claim the employer is blocking their organizing efforts, and employers claim that the union is harassing employees and electioneering using paid time. Another issue that generates great numbers of complaints is how management and union members behave during a work stoppage (strike).
Complaints of unfair labor practices are formally filed with the National Labor Relations Board (NLRB). The NLRB will investigate the complaints and issue a determination along with any order for corrective action or limitation on activities of the offending party.
In some instances, when an employer believes there has been a violation of civil law requirements, it will go directly to court requesting an injunction against the union to prevent the behavior that is causing the problem. That is common when striking union pickets block access to parking lots, loading docks, or employee building entrances. Municipal laws in many locations govern how public access to property must be maintained and how public sidewalks and roadways can be used appropriately.
In other instances, unions can seek court assistance when employers are being accused of inappropriate controls on picketers. Use of physical force by private security guards could be an example.
In either situation, the remedy sought through the court is an injunction preventing the offending behaviors. With an injunction in hand, it is possible to request help from law enforcement bodies such as the police department or sheriff’s department to enforce the injunction.
HR’s Role
Human resource professionals are usually the people responsible for monitoring activities in the workplace, documenting the behavior of individuals, and communicating the messages from management and unions to one another.

Managing Conflicts with and Between Employees
Employee conflicts are not always limited to union grievances or discrimination complaints. Sometimes they happen because what happens “just isn’t fair,” and the American expectation is always that the workplace will operate fairly.
 

HR’s Role in Managing Conflict
Howard M. Guttman, Guttman Development Strategies, Inc., has identified five roles the HR professional should play in managing conflicts within the employer organization.40
- Be a custodian of team alignment. HR professionals should hold a mirror to team members so they can see how well the team has done in reaching its goals. Part of that reflection should focus on individual accountability for participation and results.
- Drive/monitor accountability. Team members become accountable not only for their own performance but for that of their colleagues—even those who do not report to them.
- Help assess the team’s conflict-management behavior. The HR professional can guide teams through an exploration of effectiveness in handling conflicts. Identifying specific behavior changes that it will take for successful goal accomplishment then follows.
- Ensure the right capability set on teams. A major role for HR is ensuring that, after the “should be-as is” analysis, teams receive the skills needed to fill the gaps.
- Work to make sure that teams are high performers. The internal HR consultant must wear many hats: consultant, coach, facilitator, trainer, and, perhaps most important, role model to support the team’s continued success.
 

Conflict-Resolution Techniques
Some amount of conflict will always be present in the workplace. The fact that it exists is not necessarily an unhealthy thing. When it is resolved quickly and effectively, it can lead to personal and professional growth. In many cases, effective conflict resolution can make the difference between positive and negative outcomes. The “Leader’s 5-Step Guide to Conflict Resolution”41 recommends five steps in the conflict-resolution process.
 

1. Affirm the relationship I am here because I value your friendship more than I value the discomfort of confronting my hurt feelings.
2. Seek to understand Covey’s thoughts on listening are worth their weight in gold, teaching one to seek the others person’s feelings, thoughts, and perspectives first.
3. Seek to be understood After understanding, share one’s feelings, thoughts, and perspectives, not in an attacking mode but in an effort for the other party to see one’s views.
4. Own responsibility by apologizing Seek to see where any, if not all, of the conflict is one’s responsibility, learning to respond differently in the future. A genuine apology not only affirms the relationship but can do wonders in releasing hurt feelings.
5. Seek agreement After both parties have apologized, accepting responsibility for their parts in the conflict, seeking agreement means reuniting on the common vision that drew both sides together in the first place, agreeing that the cause is bigger than the conflict is for both parties.
 

One-on-One Resolution
Rarely do two parties involved in conflict have the skills to dig themselves out of the pit they find themselves in. That requires help from a coach such as an HR professional. The coach will facilitate one-on-one discussions to help the two people identify what they want and why it is important for the other party to also get what they want. Identifying something that will be satisfactory to each party is what the coaching process is designed to accomplish.
Third-Party Resolution
When something formal is required, mediation or arbitration might be the answer. Outside experts are trained and certified as mediators and arbitrators and are available for hire to bring two parties to a resolution of the conflict. It is important that each party to the process agree to accept the outcome as binding. The American Arbitration Association (www.adr.org) and the American Mediation Association (www.americanmediation.org) are two resources for HR professionals when these services are necessary.
Agency Complaints and Litigation
Internal complaints give an employer the opportunity to resolve issues with employees before they fester further and generate formal external agency complaints. Wise HR professionals will make every effort to encourage employees to file complaints internally so they will have the opportunity to investigate and resolve them. Dealing with issues internally is always preferable to having them registered with third-party law enforcement agencies.
External complaints are those filed with state or federal fair employment practices agencies (for example, Equal Employment Opportunity Commission), wage and hour enforcement agencies (for example, U.S. Department of Labor or Wage and Hour Division), or safety enforcement agencies (for example, Organizational Safety and Health Administration or Mine Safety and Health Administration). When a formal complaint is filed with an external agency, it is often a signal that the employer may no longer speak with their own employee about that issue. All discussions with the employee after a complaint is filed must be handled through the enforcement agency. As a practical matter, that means the employer will face some limitations.
Before a response can be prepared explaining what happened and why, the employer will need to conduct an investigation to determine whether the complaint has merit. Based on that result and with the help from legal counsel, a formal response can be prepared explaining the employer’s position.
Remember that these are law enforcement agencies with authority to require employers to take certain actions to remedy complaints if that is warranted. Your legal advisor is always your best ally when working with external agencies. There are usually complaint filing deadlines, designated response deadlines, and deadlines for implementing remedies. Those will vary depending on the agency involved and provisions of the relevant laws.
HR’s Role in Complaints and Litigation
HR managers are often the company’s designated contact for employee complaints. And the HR professional will usually be the person responsible for conducting the investigation into the complaint’s validity. Once the investigation has concluded, it is up to the HR professional to make recommendations to upper management regarding the outcome and any actions that should be taken. It may be necessary for the HR manager to recommend disciplinary action against the offending employee. Or it may be that the HR manager must determine how to help an employee resolve a problem that is not a question of legal compliance, but rather a problem of communication and misunderstanding.
Workplace Retaliation
Every category of federal law that deals with employee relations provides prohibitions against employer retaliation for employees availing themselves of the legal protections against mistreatment. In 2014, the EEOC received nearly 38,000 charges of retaliation from employees who had already filed complaints of discrimination based on a protected class. That was more than 42 percent of all charges filed with the commission in fiscal year 2014. Clearly, people are feeling that filing a complaint with the EEOC has caused follow-on pain.

Conducting Investigations
Investigations are appropriate in several circumstances within an employer’s organization. They can be helpful in a grievance-handling effort and are essential in determining the validity of discrimination complaints. Whenever there is a need to determine facts surrounding a complaint, an investigation should be conducted. Some form of this approach should be used when responding to safety or wage and hour complaints. Interviews may or may not be necessary depending upon the availability of records that can explain the facts.
Internal HR professionals are almost always given authority in state and federal law to conduct an investigation on behalf of the employer. If the organization wants to have an external investigator handle the fact finding, there are some limitations imposed by certain state laws. In California, for example, external investigators who are not licensed attorneys must be licensed private investigators. Other states have different requirements.
Legal advisors suggest that internal attorneys are not the best people to conduct investigations because they could be placed in the position of having to testify to their investigative activities while still providing legal advice to their employer.

Whoever is designated as the investigator should normally follow these steps:
1.Obtain a written complaint. The employee should write out a complaint that states she was treated differently from others in similar situations based on a legally protected category and that category should be identified. If she can do this, she will have provided a prima facie case, which means it sounds good on its face.
2.Conduct interviews. Next it is necessary to interview the complaining employee, the supervisor or management person who is named as the offending decision-maker, and any witnesses the employee says were there at the time. Sometimes it is a peer who has been the offending party. When that is the case, at least one interview of the offending party should be scheduled. The investigation should follow whatever leads are uncovered until the investigator is satisfied that all the facts have been uncovered that can be uncovered. Each step of the process should be documented in writing and maintained in a complaint investigation file.
3.Make a determination. Once the facts have been determined as best as possible, a determination should be made about the validity of the complaint. If the complaint is valid, a remedy should be sought based on both legal and reasonable requirements. If the complaint is determined not to have valid grounds, that will be the determination. The decision should be documented in writing and included in the investigation folder.
4.Give feedback. The employee who filed the complaint should be given feedback about the investigation results and any decisions made as a result. It may or may not be advisable to provide specific information about disciplinary action taken against an employee. Your legal advisor can give you guidance about that in your specific circumstances.

Disciplining Employees
The progressive discipline model is the one that has been used in American workplaces for more than a century. It is written into many, if not most, union contracts as a requirement to assure management treats its members appropriately when problems arise. Yet some people contend that this model is not as effective as the coaching model. 
In small organizations, discipline and termination are handled without many written procedures. The “boss” simply tells one of the employees that they are being disciplined because of a specific infraction. In larger organizations, the procedures for disciplinary action are written down in a step-by-step format and followed by managers.

Usually, discipline and termination are a multistep process. It doesn’t have to be a formal process, but it can be. Here are the typical steps in that process:
- Oral warning Observing the employee violating a policy, procedure, or instruction. In a personal discussion with the employee, the boss explains the problem and issues a verbal warning that the problem should not happen again.
- Written warning Observing the employee doing the same behavior for which they received the oral warning. This is an “escalation” of discipline to the next step. A warning in writing should explain the infraction and why it is unacceptable. It should also explain the consequence of the same thing happening again.
- Suspension Although this step is not always included in the process, it is available for use to emphasize to the employee how serious the behavioral problem is. In many cases, a suspension will be unpaid time off. It can last from a day to several weeks. The length of time should be dependent upon the seriousness of the behavioral problem and the employee’s length of service.
- Termination The final stage of the disciplinary process is removing the employee from employment. Use of this step acknowledges that the employee cannot be salvaged.
 

NOTE
Whatever disciplinary procedures you elect to use in your organization, they should be applied consistently in similar situations. It is not a good idea to treat people differently when their situations are similar. That will surely land you in court or present you with a union grievance.
Employers can avoid locking themselves into strict disciplinary procedures if they provide a policy for discretionary disciplinary decisions based on the circumstances of a situation. Policies containing hard rules about steps to be used in the process can prevent flexibility and discretion.
Preventive Measures
The best prevention is great communication. Be sure each employee is clear about the specific expectations you have for their performance. Help them understand how their personal contribution fits into the team and company efforts. Making sure people understand their personal importance to the employer’s success is critical in preventing any behavior problems. It is only when expectations are not met that there are problems. So, be sure everyone understands the expectations that relate to them.
Providing Due Process
Due process is making sure employees receive all the protections to which they are entitled and is part of what contributes to the Covenant of Good Faith and Fair Dealing. It means that every employee will be given an opportunity to hear that there is a problem with their behavior, be it conduct or production, and then given be a chance to change the behavior. Progressive discipline is one approach for providing employees with due process.
Constructive Discipline
It’s not an oxymoron. Constructive discipline can exist. It is the positive outcome of the disciplinary process. It means that even though employees are being disciplined, they understand why, and the treatment is fair within the circumstances.
 

HR’s Role in Discipline
HR professionals are the coaches for line managers and supervisors. It is HR’s responsibility to track disciplinary cases, counsel managers in how to handle disciplinary interviews, encourage employees when they discuss their problems, and nudge all parties toward a positive outcome. HR is the expert in how to do discipline appropriately. As such, teaching supervisors is a key responsibility of the HR department. And, encouraging employees with problems to do better is also part of the role HR plays.