After the National Industrial Recovery Act was declared unconstitutional by the Supreme Court, organized labor was again looking for relief from employers who had been free to spy on, interrogate, discipline, discharge, and blacklist union members. In the 1930s, workers had begun to organize militantly, and in 1933 and 1934, a great wave of strikes occurred across the nation in the form of citywide general strikes and factory takeovers. Violent confrontations occurred between workers trying to form unions and the police and private security forces defending the interests of anti-union employers. Show
In a Congress sympathetic to labor unions, the National Labor Relations Act (NLRA) was passed in July of 1935. The broad intention of the act, commonly known as the Wagner Act after Senator Robert R. Wagner of New York, was to guarantee employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.” The NLRA applied to all employers involved in interstate commerce except airlines, railroads, agriculture, and government. In order to enforce and maintain those rights, the act included provisions for the National Labor Relations Board (NLRB) to arbitrate deadlocked labor-management disputes, guarantee democratic union elections, and penalize unfair labor practices by employers. To this day, the board of five members, appointed by the President, is assisted by 33 regional directors. The NLRB further determines proper bargaining units, conducts elections for union representation, and investigates charges of unfair labor practices by employers. Unfair practices, by law, include such things as interference, coercion, or restraint in labor’s self-organizing rights; interference with the formation of labor unions; encouragement or discouragement of union membership; and the refusal to bargain collectively with a duly chosen employee representatives. The constitutionality of the NLRA was upheld by the United States Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corp. in 1937. The act contributed to a dramatic surge in union membership and made labor a force to be reckoned with both politically and economically. Women benefited from this shift to unionization as well. By the end of the 1930s, over 800,000 women belonged to unions, a threefold increase from 1929. The provisions of the NLRA were later expanded under the Taft-Hartley Labor Act of 1947 and the Landrum-Griffin Act of 1959. 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 TimesThe 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:
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 ConditionsThe 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
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
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:
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 BargainingSubjects 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
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 AgreementBy 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. What requires employers to negotiate wages hours and conditions of employment with unions?Collective bargaining is the process in which working people, through their unions, negotiate contracts with their employers to determine their terms of employment, including pay, benefits, hours, leave, job health and safety policies, ways to balance work and family, and more.
What does the NLRA stand for?The National Labor Relations Act forbids employers from interfering with, restraining, or coercing employees in the exercise of their rights.
What are the objectives of the TaftThe Taft-Hartley Act reserved the rights of labor unions to organize and bargain collectively, but also outlawed closed shops, giving workers the right to decline to join a union. It permitted union shops only if a majority of employees voted for it.
What is section 9 of the National Labor Relations Act?Under the National Labor Relations Act, most bargaining relationships are governed by Section 9(a) of the Act, which requires the union to have the support of a majority of employees in the bargaining unit.
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Which Act requires an employer to negotiate in good faith with the unions representatives over conditions of employment?
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