Human Resource Management
Rights of Workers and the Consequences of Unfair Labor Practices
The National Labor Relations Act (NLRA) was enacted in 1935 by the Congress to protect the rights of both employers and employees, to encourage collective bargaining and prevent unfair labor practices that may harm the welfare of workers and the country’s economy (National Labor Relation Board, 2016). The NLRA assures employees of the private sector the rights of being able to organize into trade unions, participate in collective bargaining to champion for better conditions at work and better terms, and take collective action (strike) when necessary. Under the act the employees are given the right to form their own organizations, join labor organizations or unions and bargain collectively through representatives that they choose for better conditions or terms. The employees are also given the right to engage in collective efforts for the purposes of collective bargaining and refrain from any work related activities unless an agreement is in place preventing such a move. The NLRA also defines a number of actions by employers that constitute to unfair labor practices such as interfering with the rights accorded to employees under the act, interfering with the formation of a labor organization, discrimination during hiring to encourage or discourage membership to trade unions and refraining to collectively bargain with the union representatives (National Labor Relation Board, 2016). Employers found to have engaged in unfair labor practices are subject to penalties that may range from issuing a cease order, disbandment of the union if the employer interfered with its formation, repayment of union dues, restoration of the pay of the employees and compensating an employee among others.
Hiring Workers and Recalling Workers from Layoff
In hiring new employees, the New York contract stipulates that a joint Union-Hotel association employment office shall be opened as soon as possible to ensure the hiring of all employees covered by the agreement. The only employees exempted from this process are the banquet captains and the banquet servers. The joint union-hotel office is governed by a number of principles that inform the hiring process. First, the joint employment office, which is jointly administered by the unions and the association, shall set up a central registration office that will be responsible for dispatching the job applicants. Any person, whether previously employed in the hotel industry or a member of the union, seeking to be employed in any job category covered by the agreement is required to fill out the job application form at the joint application office. The registration form shall cover different areas among them personal information, occupation, personal references, employment history, special qualifications and any other relevant information. A copy of the registration form shall be maintained by the joint employment office for further review.
An employer seeking to employ a new employee in any job category covered by the New York must apply for such an employee form the association branch, union branch or the joint employment office. The branch selected must choose one or more applicants who are best suited for the opening and recommend to the employer. Preference should be given to employees who previously worked in the hotel industry in New York. If an employee that meets the requirements is not referred to the employer by 4:00 pm of the second day after the request, the employer is given the opportunity to refer to any other source. Any application by an employer done after 2:00pm shall be treated as the next day application. These time limits do not apply to emergency situations. In case of an emergency, an employee should be referred within an hour or else the employer is free to refer to any other office. The New York contract recognizes that an employer may fill a vacancy from among its employees or any other employees in the hotel chain of the employer.
In cases whereby an employer violates the stipulations of the contract regarding hiring of employees, the case may be referred to a committee headed by an impartial chairperson. The committee, upon finding any violations or discrimination of employees shall terminate the employment of employee settled at by the employer. The impartial chairperson may also remedy or grant relief as deemed appropriate such as grant a one week pay or five day pay. If the unions knew about the actions of the employer then they shall be charged with penalties by the impartial chairperson. The employer is required by the contract to post all permanent job openings at the hotel to ensure that the current hotel employees to apply for the advertised positions. The employer is required to notify the union of the name, date of hire and the position of the person hired when requested to do so by the union. Also, the employer is required to notify the union of all job openings of all job categories covered by the New York Agreement.
Layoff Recall
The employer is expected to keep a list of employees laid off during the term of the New York agreement and provide union with a copy of the list. In any case of rehiring, preference should be given to persons in the list in accordance to seniority as long as the persons performed similar tasks in the department they were laid off. In any case an employer would want to lay off for a second time the recalled employee; the employer shall give the union a written notice within at least three calendar days. The employer is also required to give three calendar days to recall previously laid off employees to take position of the laid off employees. The employer is required to provide the union with written information related to the date of recall, number of employees scheduled to work in a shift, the number of employees called out and the names of the recalled employees. The employer is given the mandate to use an extra employee to fill out a schedule in case of insufficient employees pursuant to Article 8 of the agreement. The employer is required to give a 5 days’ notice regarding the change of schedule. The employer and the union are required not to lay off an employee more than three times in one calendar month. During such recalls, the employer is required to pay the employee premiums. An employee who is absent from work due to injury or sickness is required to be reinstated to his or her old job with all the rights as long as he or she is physically capable of performing the job. The employee is required to give the employer a 1 weeks’ notice of his or her intention to return to work. An employee who is absent from work for more than 52 weeks due to injury or sickness may be rehired but for more than 208 weeks, the employee may lose his or her seniority rights. An employee needs to furnish the employer proof of sickness or injury.
Discipline and Discharge
The New York agreement states that the employer has the right to discipline or discharge any employee when it is deemed necessary. The employer is required to submit the matter (discipline or discharge) to the labor manager within 10 days after the discharge or disciplinary action in cases of being a member of the association of labor relations group. The employer is also required to inform the union which will further submit the issue to an impartial chairperson who will handle any matters regarding disputes. In cases of not being a member of the Labor Relations Group, the employer and the union are required to submit the matter directly to an impartial chairperson who will oversee the course of action to be taken. In cases whereby an employee registers with Article 21 of the agreement, he or she is not required to mitigate his or her damages but in cases whereby s/he has not registered with the article, the impartial chairperson shall require him or her to mitigate the damages. The job referral office is require to furnish the employer with all the relevant information related to the forgoing upon request.
In the case of being a member of the Association of Labor Relations Group, an employer who intends to discharge or suspend an employee, prior to making such a move, shall consult with a union representative. The union representative is required to meet with the employer within 5 business days after being requested to do so by the employer. If no such meeting takes place, the dispute should be scheduled for a mediation hearing immediately after the expiration of the 5 day’s timeline. Henceforth, the matter may be filed at the impartial chairperson’s office within five days after filing of the request. The office of the impartial chairperson is required to issue an award within five days after the hearing. Unless the office of the impartial chairperson recommends the discharge or suspension of the employee in question, the employee is required to continue working unless the case in question involves physical fighting, theft, violence in the workplace, drug and alcohol abuse or such related cases. In the cases of being a non-member of the Association of Labor Relations Group, the employer before effectuating a suspension or a discharge from work is required to consult with a business agent or an officer of the union. If within five days of the meeting, a substantial agreement in not forthcoming, the employer is required to raise the matter with the office of the impartial chairperson and request a hearing. The employee is required to remain on the job pending the judgment by the office of the impartial chairperson unless the cases are as mentioned.
The New York agreement also states that any disciplinary actions for any non-serious offences shall be deemed null and void after 2 years (24 months period) in as long as the employee has not received any further disciplinary action during that period. Disciplinary actions related to attendance, tardiness or absences are not subject to the processes required by Article 27 and shall be null and void after 2 years unless the employee has received further disciplinary actions during that period. Serious offences, according to the agreement include fighting, theft, workplace violence, alcohol and drug possession on the job, violence threats and harassment of any kind. The failure by the union to challenge the actions of the employee must not prevent it from challenging as long as it does so within a reasonable period after filing of a written request by the employer.
Scheduling
According to the New York Agreement, the employer is required to fix a specific time period when an employee must take a vacation and must give the union at least a 2 weeks’ notice of the vacation schedule. The vacation schedule that the employer provides must provide for adequate vacation periods that to accommodate full vacation entitlement of the employees. The vacation requests that are received prior to 15th of January each year would be scheduled in accordance to seniority. The vacation requests can be denied or approved within 2 weeks after the elapsing of the 15th January deadline. All employees that did not manage to hand in vacation requests before 15th January have a final opportunity to hand over their requests before 1st May for any of the remaining week available. Such requests can either be approved or denied within two weeks and would be scheduled in terms of seniority. The vacation requests will be handed out to the employees on a “first come first served basis” for all the available vacation weeks that are remaining. The agreement requires that all vacation requests be in writing and the responses also be in writing. The employer determines the vacation requests based on the demands of the business. All requests for unpaid leave shall be made by the employees in writing and should be responded to within a reasonable period of time.
Managing through a Strike
The New York Agreement clearly stipulates that both the employer and the union recognize the service nature of the hotel industry and the duty of the hotels to render services to the public in the form of food, lodging and necessary accommodation. As such, the agreement requires the unions not to call for, participate in, engage in or participate in any form of strike. Consequently, the different forms of strike such as stoppage of work, sit-ins, sit-downs, boycotts, sympathy strike and refusing to handle any merchandise are not to be sanctioned by or approved by the unions. The unions are required not to interfere with the business operations of the employer and also not to interfere with guests or tenants in the hotel. A strike of any kind will interfere with the conduct of business of the employee and also interfere with the guests and tenants of the hotel which is against the contract. Such a move by the unions to call for a strike would be in violation of the New York agreement. The employer, on the other hand, is required by the contract not to lock out its employees or any part of the employees.
The union and the employee are also required by the contract not to directly or indirectly at any time, interfere with or prevent the employer from purchasing any service requirements or merchandise that it may desire from any source or supplier. The employment of the said individuals should not in any way prevent the employer from performing its business transactions, whether purchasing or selling goods and services. The union and the employees are required contractually not to refuse handling, selling and delivery of work on any such merchandise which the employer may purchase. The unions and the employees are further required not to call, sanction or participate in any sympathy strike of the employees as a result of employer’s actions to purchase merchandise manufactured by or any services supplied by individuals who are non-members of a union or employers of non-unionized workers. Participation in such a strike would be in violation of the New York agreement. Further, the agreement stipulates that the union and the workers shall not call upon or compel the employer to assist or participate in the enforcement of an silent or public boycott against a product or service offered for sale or used by the employer. Acts of such nature would be in violation of the agreement and would call for a hearing by an impartial chairperson who would administer the verdict. The impartial chairperson is tasked with handling all disputes related to violations to the agreement on strikes and lockouts. The New York agreement categorically states that there should be no strike, lockout or stoppage of any kind pending the determination of the dispute by the office of the impartial chairperson.
References
National Labor Relation Board, (2016). National Labor Relations Act. Accessed 3rd May 2016. Retrieved from https://www.nlrb.gov/resources/national-labor-relations-act
