Labor Relations in the Public Sector
The NLRA applies only to the private sector. Federal employees are covered by the Civil Service Reform Act of 1978, which established the Federal Labor Relations Authority. State and local government employees are covered by a state public employees relations commissions.
Probably the most significant difference between public and private collective bargaining is the fact that public employees cannot strike. The prohibition on striking is grounded in the need to protect public health, as well as the doctrine of sovereignty, meaning the federal government has the highest authority in such matters.
There are also differences in what can be negotiated. Federal employees cannot bargain over wages, hours, or benefits. They can bargain about the numbers, types, the use of grades of positions, procedures for performing work, exercise of authority, the use of technology, and the alternatives for employees harmed by management decisions.
1. True or false: Any employee—except corporate officers—can be a union member.
2. True or false: Management’s refusal to bargain in good faith is an unfair labor practice, regardless of the subject matter in question.
3. As part of every employment interview, the employer asks the applicants their views on unionization. Discuss the legality of this behavior.
4. What is the purpose in locking out the employees if during a lockout the employer must continue to negotiate with the union?
The Occupational Safety and Health Act (OSHA) is a federal law enacted in 1970 to improve safety in the workplace. Before OSHA, employees had only the common law (general principles of personal injury/torts law, contract law, and the like) to protect them from injuries in the workplace. The act creates both specific and general standards for employers to follow. It imposes two requirements on employers:
· compliance requirements—employers must comply with all of the safety and health standards dictated by the Department of Labor
· general duty clause—employers must furnish to each employee a job and workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm
OSHA is enforced by the Occupational Safety and Health Administration, an agency within the Department of Labor. Approximately 25 states have similar agencies and act as a partner with the federal OSHA. The act is enforced through inspections of the workplace by compliance officers following a complaint, a grievance, or reports of fatal or multiple accidents. In certain high-risk industries, routine inspections regularly are conducted. All inspections are conducted without notice.
An antiretaliation clause protects workers who notify OSHA of hazardous conditions. Penalties and abatement orders are assessed in connection with a violation.
A number of specific requirements regarding the physical layout of the work site must be met. For example, all employees must be trained on protective measures. Medical examinations must be provided by employers to employees exposed to dangerous chemicals.
Emergency Temporary Standards
When a grave danger is discovered by a compliance officer, the act allows the Secretary of Labor to establish temporary emergency standards that are effective immediately upon publication in the Federal Register without having to go through the lengthy rule-making process required by the act. The emergency standards are effective until regular standards are approved.
The general duty clause protects employees against certain hazards in the workplace when no other applies. The clause reads: “Each employer ¼ shall furnish to each of his employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm¼”
Although the definition of a recognized hazard has not been completely settled, the most often adapted definition is that a recognized hazard may take the form of actual knowledge when the employer actually knows of the hazard, or constructive knowledge if the industry recognizes the hazard even if the employer doesn’t actually know of the hazard.
Actual knowledge can be demonstrated in two ways:
· past safety practices or policies of the employer suggesting that the employer knew there might be a hazard
· the hazard is so obvious that anyone would be aware of it
Barring actual knowledge, the employer may be liable for knowledge of those hazards of which the entire industry is aware.
When an employee believes the employer has violated its general duty to provide a safe working environment, the employees may refuse to work in that environment or to perform a particular task. The employee’s refusal must be based on a reasonable apprehension of death or serious injury, coupled with a reasonable belief that no less drastic alternative is available. Under these circumstances, the act protects the employee from retaliation.
Employer Reporting Responsibilities and Employee Rights
Any employer with 11 or more employees is required to maintain records of work-related injuries. An injury is considered work related if:
· it occurred on the employer’s premises
· it occurred as a result of work-related activities
· the employee was required to be there by the employer
· the employee was traveling to work or to a place as required by the employer
The records must contain the following information:
· incident date
· category of illness, if applicable
· description of incident
· identification of affected employee
· extent of injury or illness
· if incident was an illness, whether the employee was transferred or terminated
This information must be posted for all employees to see each year from February 1 to March 1.
Within six days of any incident, a report must be filed with OSHA. Any incident involving five or more employees, or any fatality, must be reported within 48 hours. Employers in some relatively low-risk industries are not required to report.
According to the act, employees have the right to request and participate in inspections, receive notice of an employer’s violations or citations, be given access to monitoring procedures and results, and be given access to medical information.
Employer defenses to charges of violating the general duty clause include:
· reckless behavior—when the employee is willfully reckless, notwithstanding the employer’s efforts to train and educate workers about the dangers and hazards. The employer will be held liable for only the foreseeable, plausible, and therefore, preventable acts of employees.
· physical or economic impossibility of compliance—when an employer has no choice and employees refuse completely to comply with a safety standard, the employer can apply for a variance, meaning this particular employer is free from compliance based on the specific situation.
· employee reduction of risk—when an employer cannot on its own make a workplace safe, but through acts of the employees the workplace can be made safe, the employer is allowed to require those acts for anyone who chooses to work there.
· greater hazard defense—employers may assert that compliance with a health and safety standard would subject the employees to a greater hazard than that which would be prevented by the compliance.
1. True or false: Baker was an employer with an exemplary safety record for nearly ten years when an accident took the life of an employee. In the ensuing investigation to determine OSHA liability, Baker cannot assert as evidence his outstanding safety record.
2. Briefly describe the two duties imposed on employers by section 5(a) of the Occupational Safety and Health Act.
3. Under what circumstances is an employer protected against employee action for refusing to work in a particular area or perform a particular task?