An Overview of the Duty to Bargain in Good Faith

Presented at NECA Labor Relations ConferenceMarch 26, 2008New Orleans, Louisiana

By: Gary L. Lieber, Esquire

HISTORICAL REFERENCE

• 1935 National Labor Relations Act (Wagner Act)

Section 8(a) and Section 9

• 1947 Labor-Management Relations Act (Taft-Hartley Act)

Section 8(b) – including DFR, secondaryboycott, union duty to bargain in good faith

Section 7 – right to refrain from Union activities

*Section 301 – breach of collective bargaining agreement

*Not regulated by NLRB

HISTORICAL REFERENCE

• 1959 Labor-Management Reporting & Disclosure Act (Landrum-Griffin Act)

*Internal Union regulatory schemeSection 8(e) (hot cargo prohibition) and Section 8(f) (prehire agreements)

*Not regulated by NLRB

OVERVIEW OF UNFAIR LABOR PRACTICES AGAINST EMPLOYERS

• § 8(a)(1) – unlawful interrogation, promises of benefits, threats, protected concerted conduct, catch-all

• § 8(a)(2) – dominating Union• § 8(a)(3) – unlawful termination, discipline• § 8(a)(4) – retaliation for giving evidence

to NLRB• § 8(a)(5) – refusal to bargain in good faith

MAJOR UNFAIR LABORPRACTICES AGAINST UNIONS

• § 8(b)(1)(A) – restrain or coerce an employee – DFR, threats of violence, mass picketing;

• § 8(b)(1)(B) – selection of management’s spokesperson; firing supervisors for the way they apply contract terms;

• § 8(b)(2) – seek termination of a Union dissident; discriminatory hiring hall;

MAJOR UNFAIR LABORPRACTICES AGAINST UNIONS

• § 8(b)(3) – Union’s duty to bargain in good faith;

• § 8(b)(4) – secondary boycott provisions;

• § 8(b)(7) – recognitional picketing.

OTHER PROVISIONS OF THESTATUTE REGULATED BY NLRB

• § 8(e) – prohibition against “hot cargo” agreements;

• § 8(f) – prehire agreements;

• § 8(g) – special strike provisions relating to health care;

• § 9 – Provisions Relating to Elections and Certification of Union Representative Status.

SECTION 7

Employee Rights Defined in Section 7Sec. 7. Employees shall have 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 other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

WHAT NLRB DOES NOT REGULATE

• Unfair Terminations – not an unfair labor practice to terminate for good reason, bad reason or no reason.

• Breaches of the Collective Bargaining Agreement – subject to grievance procedure and enforceable through Section 301.

DUTY TO BARGAIN IN GOOD FAITH

Section 8(a)(5) states, “It shall be an unfair labor practice for an employer . . . to refuse to bargain collectively with the representative of his employees subject to the provisions of Section 159(a) of this title.”

DUTY TO BARGAIN IN GOOD FAITH DEFINED IN SECTION 8(d)

(d) Obligation to bargain collectivelyFor 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, but such obligation does not compel either party to agree to a proposal or require the making of a concession;

BREAKDOWN OF SECTION 8(a)(5) OBLIGATIONS

• Meet and confer at reasonable times;

• “With respect to wages, hours and other terms and conditions of employment;” mandatory v. non-mandatory (permissive)

or illegal; if not mandatory may not bargain the

subject to impasse;

QUESTIONS TO CONSIDER

1. “Vitally Affect” BUE or remote/speculative

2. Unilateral Change – entrepreneurial or labor costs

3. Union Waiver

MANDATORY

• Wage• Hours• Employee Benefits (H &

W, Pension, Apprenticeship)

• Safety Issues• Hiring Hall/Referring

Procedure• Bonuses• Union Security &

Checkoff

• Company Disciplinary Rules

• Management Rights (as long as do not seek to reserve non-mandatory rights (e.g., right to tape negotiations)

• Drug Testing of current employees

• No-Strike

PERMISSIVE

• Retiree Health Benefits• Industry Funds• Interest Arbitration

Clause• Time Clocks• Close Entire Business• Tape Recording or

Transcribing Bargaining Meetings

• Modify Bargaining Unit Description

• Performance Bonds & Indemnification Clauses

• Settlement of Unfair Labor Practice Cases As Condition Precedent

• Other Party’s Ratification Procedure

DEPENDS UPON CIRCUMSTANCES

Written Rule implementing past practice which management reserved for itself

Subcontracting

1. impact upon workforce

2. labor-lost impact or change in nature of business

3. waiver/zipper clause

ILLEGAL SUBJECTS

Proposals in violation of law, e.g.,

1. Hiring Union members only;

2. Unlawful subcontracting clause (e.g., not limited to jobsite)

PRACTICAL CONSIDERATIONS REGARDING THE DUTY

TO BARGAIN

1. “Does not compel either party to agree to a proposal or require the making of a concession.”

2. Flexibility;

3. State reason for your positions;

4. Do not denigrate Union;

5. Bring in experts to discuss specific subjects.

Contact Information

Gary L. Lieber, Esquire2600 Virginia Avenue, N.W.Suite 1000 – The WatergateWashington, DC 20037-1922Phone: 202.342.3410Fax: 202.295.6766Email: glieber@saul.com

Saul Ewing’s Office LocationsBaltimore, MarylandLockwood Place500 East Pratt Street, Suite 900Baltimore, MD 21202410.332.8600fax: 410.332.8862

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