Chapter 15
COLLECTIVE BARGAINING
INTRODUCTION
This chapter focuses on the nature of the duty to bargain in good faith that the NLRA imposes upon the
parties. The nature of the duty to bargain in good faith, its duration, and the procedural requirements of
CHAPTER OUTLINE
*Collective bargaining: Process by which a union and employer meet and confer with respect to wages,
hours, and other terms and conditions of employment.
I. The Duty to Bargain
A. Bargaining in Good Faith
1. Section 8(a)(5) requires that the employer bargain with a union that is the
representative of its employees according to Section 9(a).
CASE 15.1 EMPORIUM CAPWELL CO. V. WESTERN ADDITION
COMMUNITY ORGANIZATION
420 U.S. 50 (1975)
Background: A group of Company employees covered by the agreement met with the Secretary-
Treasurer of the Union to present a list of grievances including a claim that the Company was
discriminating on the basis of race in making assignments and promotions. After receiving the union’s
report on the matter, the Company said they would look into it. Unsatisfied with the grievance
Issue: This litigation presents the question whether, in light of the national policy against racial
discrimination in employment, the National Labor Relations Act protects concerted activity by a group
of minority employees to bargain with their employer over issues of employment discrimination.
Decision: No. The Board found that the discharged employees did not follow the procedure that the
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union had bargained for and were therefore not protected.
ANSWERS TO CASE QUESTIONS
1. The minority employees complained that the company was discriminating based on race when
making job assignments and promotions. The union investigated the grievances and held a meeting
2. The minority employees claimed that the grievance procedure under the collective agreement was
3. The NLRB held that the minority employees’ conduct was not protected under the NLRA because
they failed to follow proper channels under the collective agreement. The Supreme Court agreed
4. Procedural Requirements of the Duty to Bargain in Good Faith
a) A union or employer seeking to bargain with the other party must notify
that other party of its desire to bargain at least sixty days prior to the expiration of
5. Creation of the Duty to Bargain
a) Arises when the union gets the support of a majority of the employees in a
bargaining unit.
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6. Duration of the Duty to Bargain
a) When the union is certified as bargaining representative after winning an
election, the NLRB requires that the employer recognize and bargain with the union
for at least a year from certification, regardless of any doubts the employer may
CASE 15.2 AUCIELLO IRON WORKS, INC. V. NLRB
571 U.S. 781 (1996)
Background: One day after Auciello Iron Works’ contract offer was accepted by the union, the employer
went back on the agreement because of a good-faith doubt that a majority of employees supported the
union. The Board ruled that employer’s withdrawal was an unfair labor practice in violation of the act
and mandated that the agreement be a formal written instrument. The Court of Appeals enforced the
order as reasonable
Issue: Can an employer disavow a collective bargaining agreement because of a good faith doubt about a
union’s majority status at the time the contract was made, when the doubt arises from facts known to the
employer before its contract offer had been accepted by the union?
Decision: No. The Court held that the Board reasonably concluded that an employer challenging an
B. The Nature of the Duty to Bargain in Good Faith
1. Making concessions or reaching agreement is not necessary to good faith
bargaining.
*Impasse: A deadlock in negotiations.
3. When the impasse results from a party’s rigid insistence upon a particular proposal,
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II. Subject Matter of Bargaining
A. Mandatory Bargaining Subjects
1. The NLRB and the Court have broadly interpreted the matters subject to mandatory
*Mandatory bargaining subjects: Those matters that vitally affect the terms and conditions of employment
of the employees in the bargaining unit; the parties must bargain in good faith over such subjects.
CASE 15.3 FIRST NATIONAL MAINTENANCE CORP. V. NLRB
452 U.S. 666 (1981)
Background: Employer is a maintenance corporation. Because the operation was losing money, the
employer cancelled operations at one of its locations. The union filed charges alleging that the employer
Issue: Must an employer, under its duty to bargain in good faith “with respect to wages, hours, and other
terms and conditions of employment,” Sections 8(d) and 8(a)(5) of the National Labor Relations Act,
negotiate with the certified representative of its employees over its decision to close a part of its
business?
1. FNM decided to close its Greenpark operations because Greenpark had complained about the “lack
of efficiency” of its service, and Greenpark had refused to agree to an increase in FNM’s fees. The
2. The Court holds that bargaining over management decisions that have a substantial impact on the
continued availability of employment should be required if the benefits for the labor relations and
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process.
3. If an issue is labeled a mandatory bargaining subject, then either party is prohibited from making a
3. Whether the employer must bargain with the union over a management decision
such as plant closing, work relocation, or corporate reorganization is dependent upon
CASE 15.4 VISITING NURSE SERVICES OF WESTERN
MASSACHUSETTES, INC. V. NLRB
177 F.3d 52 (1st Cir. 1999), cert. denied, 528 U.S. 1074 (2000)
Background: A home based nursing services employer and employee union could not agree on a new
collective bargaining agreement. The employer notified the union that intended to move forward with
changes the union opposed. It notified employees. The union filed charges alleging that the employer
made changes to mandatory bargaining subjects while still bargaining with the union (and that they had
not reached an impasse). The Board ruled for the union and the employer appealed.
Issue: Did these unilateral changes to mandatory bargaining subjects violate the act?
Decision: Yes. Whether the parties have reached an impasse is a fact-driven question, with the Board
B. Permissive Bargaining Subjects
1. Examples:
a) Union procedure for ratifying contracts.
2. Matters that are “inherent management rights” or “inherent union rights” are also
permissive subjects.
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*Permissive bargaining subjects: Those matters that are neither mandatory nor illegal; the parties may, but
are not required to bargain over such subjects.
C. Prohibited Bargaining Subjects
1. Prohibited bargaining subjects are proposals that involve violations of the NLRA or
other laws.
D. Modification of Collective Agreements
1. Section 8(d) of the act prohibits any modifications or changes in a collective
agreement’s provisions relating to mandatory bargaining subjects during the term of the
agreement unless both parties to the agreement consent to such changes.
2. Plant Closing Legislation
*Mass layoffs: Layoffs creating an employment loss during any thirty-day period for 500 or more employees
or for fifty or more employees who constitute at least one-third of the full-time labor force at a unit of the
facility.
*Failing firm exception: An exception to the WARN notice requirement for layoffs that occurs when the
employer can demonstrate that giving the required notice would prevent the firm from obtaining capital or
business necessary to maintain the operation of the firm.
ETHICAL DILEMMA
Possible Plant Closing—To Meet or Not to Meet?
This Ethics feature deals with the question of whether to meet with the union at the Utica facility to
discuss concessions that could prevent the plant closing. If the decision to close is not motivated by labor
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the decision, it must bargain with the union on the effects of the decision to close⎯severance pay,
outplacement and retraining, possible transfer to other facilities, etc.
3. The Duty to Furnish Information
a) NLRB v. Truitt Mfg.: held that an employer that pleads inability to pay in
response to union demands must provide some financial information in an attempt
to support that claim.
E. Bargaining Remedies
CASE 15.5 H. K. PORTER CO. V. NLRB
397 U.S. 99 (1970)
Background: Employee union desired to have the employer “check off” dues owed to the union by its
member (deduct those dues periodically from paychecks). It was found that the employer refused to do
so simply because it did not want to help the union. The board found and the Court of Appeals agreed
that the refusal was not made in good faith. The Board required the employer to engage in further
collective bargaining if the union requested. The union claimed that this order required the employer to
agree to the check off. Eventually the employer was required to provide for one and appealed.
Issue: Can the employer be required to provide for a check off as a remedy for bargaining in bad faith?
ANSWERS TO CASE QUESTIONS
1. No, the employer had not agreed to the dues check-off provision. The court of appeals felt that the
2. The Supreme Court held that the NLRB did not have the power to order the employer to agree to
check-off. S. 8(d) of the NLRA provides that the failure to reach an agreement or failure to making
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3. The NLRB’s power to remedy violations of the duty to bargain in good faith is limited to ordering
the guilty party to cease and desist from the violation, and to negotiate in good faith on the subject;
the NLRB cannot order either party to agree to any subject.
THE WORKING LAW:
NLRB Office of the General Counsel Memorandum GC 14–03
TO: All Regional Directors, Officers-in–Charge and Resident Officers
FROM: Richard F. Griffin, Jr., General Counsel
SUBJECT: Affirmation of 10(j) Program
“An important priority of mine is to ensure that we continue our efforts to obtain immediate relief in those
III. Antitrust Aspects of Collective Bargaining
A. When a union and a group of employers agree upon specified wages and working
conditions, the effect may be to reduce competition among the employers with respect to those
wages or working conditions.
ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. Under S. 9(a), an employer may adjust grievances of individual employees if it is done consistent
2. When neither of the two unions is an incumbent, the employer may recognize a union if it
produces evidence of majority support, unless a valid election petition has been filed with the
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3. Mandatory subjects for bargaining are those defined in S. 8(d) as “wages, hours, terms and
conditions of employment”; the Board and the courts broadly interpret these terms. The
4. An employer, according to Truitt, is required to provide financial information if the employer has
pleaded inability to pay, and the union has made a good faith request for information supporting
5. A union violates the antitrust laws when it agrees with one group of employers to impose
restrictions upon another group of employers, or when the union seeks to impose restrictions on
CASE PROBLEMS
6. The Court of Appeals held that the Board’s finding was not justified; the employer engaged in
serious bargaining over the economic package at each negotiation session. The Court held that
7. The Board ordered the employer to release the information, but the Supreme Court held that the
Board had abused its discretion. The Court held that the union’s bare assertion of need for the
8. The NLRB held that the unilateral decision to close the cafeteria overnight was in violation of the
duty to bargain under S.8(a)(5); the availability of food for employees during working hours is a
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9. The Board held that the employer’s refusal to provide the information requested by the union was
a refusal to bargain in good faith. The union request of information on the factual basis of Sonat’s
10. This case involves a “double-breasted” company⎯a construction company having both a
unionized and a non-union operation. The union arguments involve the idea that the company is
using the non-union company to take away work from the unionized company; in effect, the
11. The Board ruled that the withdrawal of the package was not improper; in light of the union’s prior
12. The NLRB held that the union violated S. 8(b)(3) by making a unilateral change in a mandatory
subject during the term of the contract⎯the object of the threat to fine members was to change
13. The union was held to be in violation of S. 8(b)(3) because of its refusal to bargain over the wage
and reporting clauses affected by the omission of the weather clause. The Board held that the
14. As discussed in the Auciello case, the employer may withdraw recognition from the union after
the collective agreement had expired, if the employer can demonstrate that it had a good faith
reasonable doubt as to the union’s majority support. Here, the petition and the fact that half of the
workers crossed the picket line could give rise to a good faith doubt. However, as in Curtin
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15. The Board held that the employer violated Ss. 8(a)(1) and (5). The Board held that the decision to
subcontract out the assembly operations turned on the labor costs, and was not a fundamental
change in the nature of the employer’s business. The Board also held that the company had not
HYPOTHETICAL SCENARIOS
16. Yes. It is a section 8(a)(5) violation to unilaterally implement EAP program after employee death.
Section 8(a)(5) requires that the employer bargain with a union that is the representative of its
17. No. When the union is certified as bargaining representative after winning an election, the NLRB
requires that the employer recognize and bargain with the union for at least a year from certification,
regardless of any doubts the employer may have about the union’s continued majority support. After
the one-year period or a reasonable period of time—whichever is appropriate—has expired, and
18. The NLRB should rule in favor of the union. According to NLRB v. Truitt Mfg., the Court held that
an employer that pleads inability to pay in response to union demands must provide some financial
19. No. Hard bargaining, in and of itself, is not a violation. When an impasse results from a party’s
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20. Yes. When an employer engages in conduct indicating lack of good faith—such as refusing to