When a union is certified by the National Labor Relations Board (NLRB) or voluntarily recognized by an employer creates an obligation under the law for both the union and the employer to bargain in good faith. The only thing a union wins when it wins an NLRB election is the right to sit with the employer and bargain in good faith. Good faith – a seemingly common sense term, but like most legal concepts it is not as simple as it seems. So, what does it really mean?
Section 8(a)(5) of the National Labor Relations Act (the Act) reads, ” It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees.” Section 8(b)(3) of the Act reads, “It shall be an unfair labor practice for a labor organization or its agents to refuse to bargain collectively with an employer.” Finally, Section 8(d) reads, “For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party.”
Good Faith – Meet at Reasonable Times
The parties are required to meet at reasonable times under Section 8(d). However, the section contains the word “reasonable” which is the lifeblood that pumps the heart of litigators the world over. Politicians avoid taking a hard stance on a topic and actually establishing a rule by inserting the word reasonable into as many statutes as possible. Trial lawyers bill thousands of hours prosecuting or defending claims about what the term actually means.
So what does the NLRB say about the definition? Well the agency’s definition is no less murky. The Board has said the test is whether a party’s conduct reflects a subjective willingness to reach an agreement. In fact, the Board, and the courts, have resisted the creation of a formula upon which one can relay. It has held:
Neither the Board nor the courts can evolve a formula that determines if “any given frequency of meetings or amount of time spent in negotiations, satisfies the statutory requirement ‘to meet at reasonable times’ “
Radiator Specialty Co., 143 NLRB 350, 368 (1963)
So where does that leave an employer trying to meet the good faith standard? You must meet regularly. you don’t need to meet daily or even weekly. Such a schedule is unreasonable considering all the factors. You should meet at least monthly. You should meet at least a couple of days when you meet and for the full day. This demonstrates to the union, and if necessary the NLRB, that you have dedicated serious time to working out the agreement. An experienced negotiator will assist you in gauging what is “enough.”
Good Faith – Bargain Over Terms and Conditions
The second and most comprehensive element of good faith from the statute is the requirement to “confer in good faith with respect to wages, hours, and other terms and conditions of employment.” This element is much more clearly defined by the NLRB and courts. Specifically, the topics which can potentially be discussed at the bargaining table fall into one of three categories: (1) Mandatory subjects of bargaining, (2) Permissive subjects of bargaining, and (3) policies.
As a threshold matter – never bargain over policies! Policies that don’t directly affect the terms and conditions of your employees, but only relate to how you run your business are simply not the business of the union. However, as soon as you allow them to begin weighing in on policies, you have set a precedent that may act as a waiver of your right to refuse to bargain over policy.
Mandatory Subjects of Bargaining
In general the mandatory subjects of bargaining are “only issues that settle an aspect of the relationship between the employer and employees.”
Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404 U.S. 157, 178, 92 S. Ct. 383, 397, 30 L. Ed. 2d 341 (1971)
This is by far the broadest of the categories and is frankly the most intuitive. The following is a primer on what is a mandatory subject, but should not be seen as a comprehensive list.
Mandatory Subjects of Bargaining
- Wages and other compensation. This includes bonuses, shift differentials, piece rates, commission, incentive pay plans, overtime pay, severance pay, holiday pay, paid time off, vacations, insurance, pensions, and other compensation items.
- Scheduling. This includes work schedules, breaks, vacations, and holidays.
- Work rules. This encompasses safety practices, disciplinary rules and procedures, policies regarding employee monitoring, locker search policies, policies governing smoking, drug, and alcohol testing, and any policy that may have a compensation, discipline, or job security implications.
- Work assignment and job protection provisions. This includes job assignments and layoff and recall rights.
- Grievance and arbitration procedures. This includes any policy or procedure for resolution of labor-management disputes under a collective bargaining agreement.
The easiest way to determine if something is a mandatory subject is to ask a simple question. “Does this directly affect an employee’s compensation, discipline, or job security?” If the answer is yes to any of those, then the argument that the topic is a mandatory subject is strong.
It is very important to note that the Supreme Court held:
“the obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to ‘wages, hours, and other terms and conditions of employment * * *.’ The duty is limited to those subjects, and within that area neither party is legally obligated to yield.”
N. L. R. B. v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349, 78 S. Ct. 718, 722, 2 L. Ed. 2d 823 (1958)
So determine your position relative to those items. Bargain hard for your position. Don’t yield for the sake of yielding. This is a key to winning at the table. For more on winning at the table see our blog entry on the subject.
Permissive Subjects of Bargaining
Subjects that relate to non-unit employees or things outside of, or not directly bearing on things listed above as mandatory are considered permissive subjects of bargaining. Most collective bargaining agreements contain at least some permissive subjects. Some examples include:
Permissive Subjects of Bargaining
- Expansion of the bargaining unit
- Retiree benefits
- Provisions covering job applicants
- Contract ratification procedures
- Interest arbitration
- Neutrality and card-check provisions for non-unit employees
- Contributions to political action committees
- Contributions to training industry funds –and–
- Use of a union label
Permissive subjects are governed by three basic rules. (1) A party can make the proposal and if both parties choose to negotiate over the topic then any agreement reached is enforceable. (2) A party cannot lawfully insist on a permissive subject to impasse. (3) A party may not engage in a strike or lockout to obtain a party’s agreement to a proposal.
Good Faith – Execute an Agreement
By far the easiest of the good faith elements is the requirement to execute an agreement in writing if requested by the other party. Surprisingly, there are several dozen charges filed each year with the NLRB claiming one party or the other violated this provision. The key is to take detailed bargaining notes and to put every proposal, counter proposal, and response to the same in writing. That prevents any confusion or dispute about the final document that memorializes the agreement of the parties.
Conclusion – (Not the End!)
This article presented the basics of good faith. As with any large body of law more than eighty years old, the courts tend to expand the scope of what is both lawful and unlawful. The second installment of this blog series discusses the expanded definitions of good faith bargaining.