8.3 Collective bargaining and labor contracts

Collective bargaining is a crucial process where employers and unions negotiate employment terms. It involves preparing, negotiating, and ratifying agreements while balancing both parties' interests. The process requires good faith, addresses mandatory and permissive subjects, and determines bargaining units.

The National Labor Relations Act governs collective bargaining, protecting workers' rights to organize and engage in concerted activities. It outlines unfair labor practices, establishes procedures for union elections and decertification, and imposes a duty of fair representation on unions towards all bargaining unit members.

Collective bargaining process

• The collective bargaining process is a negotiation between an employer and a union representing employees to determine the terms and conditions of employment
• The process involves a series of steps, including preparing for bargaining, negotiating the agreement, and ratifying the contract
• The goal is to reach a mutually acceptable agreement that balances the needs and interests of both parties

Bargaining in good faith

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• Both the employer and the union have a legal obligation to bargain in good faith, which means engaging in sincere and honest negotiations
• Parties must be willing to meet at reasonable times, discuss relevant issues, and make a genuine effort to reach an agreement
• Examples of bad faith bargaining include surface bargaining (going through the motions without intending to reach an agreement) and direct dealing (bypassing the union to negotiate directly with employees)

Mandatory vs permissive subjects

• Mandatory subjects of bargaining are those that directly relate to wages, hours, and working conditions, such as pay rates, benefits, and job classifications
• Permissive subjects are those that do not directly relate to employment terms, such as the company's business decisions or the union's internal affairs
• Parties are required to bargain over mandatory subjects but can choose whether to discuss permissive subjects

Bargaining unit determination

• A bargaining unit is a group of employees with similar interests who are represented by a union for collective bargaining purposes
• The National Labor Relations Board (NLRB) determines the appropriate bargaining unit based on factors such as job duties, skills, and working conditions
• Examples of bargaining units include all production workers in a factory, all nurses in a hospital, or all teachers in a school district

Exclusive representation

• Under the principle of exclusive representation, the union chosen by a majority of employees in a bargaining unit becomes the sole representative for all employees in that unit
• The employer is required to negotiate only with the exclusive representative and cannot deal directly with individual employees on matters related to the bargaining agreement
• This ensures a unified voice for employees and prevents the employer from undermining the union's role

Unfair labor practices

By unions

• Unions can engage in unfair labor practices, which are actions that violate the rights of employees or employers under the National Labor Relations Act (NLRA)
• Examples include threatening or coercing employees to join the union, refusing to bargain in good faith, and engaging in secondary boycotts (pressuring neutral employers to stop doing business with the primary employer)
• Unions that commit unfair labor practices can be subject to sanctions by the NLRB, such as cease and desist orders or fines

By employers

• Employers can also engage in unfair labor practices that violate the NLRA
• Examples include interfering with employees' rights to organize or join a union, discriminating against employees for union activity, and refusing to bargain in good faith
• Employers that commit unfair labor practices can be ordered by the NLRB to take corrective action, such as reinstating fired employees or posting notices informing employees of their rights

Collective bargaining agreements

Typical contract provisions

• Collective bargaining agreements (CBAs) typically include provisions on wages, benefits, hours, working conditions, and other employment terms
• Common provisions include pay scales, overtime rates, health insurance, retirement plans, vacation and sick leave, job classifications, and seniority rights
• CBAs also often include grievance procedures, management rights clauses, and no-strike/no-lockout provisions

Duration and renewal

• CBAs are usually in effect for a specified period, typically one to five years
• Near the end of the contract term, the parties can negotiate a new agreement or extend the existing one
• If no agreement is reached by the expiration date, the terms of the old contract may continue in effect while negotiations proceed

Grievance procedures

• Grievance procedures provide a formal process for resolving disputes over the interpretation or application of the CBA
• Typically, the process involves several steps, such as the employee discussing the issue with a supervisor, filing a written grievance, and having the union and employer representatives meet to discuss the grievance
• If the grievance is not resolved through these steps, it may go to arbitration, where a neutral third party makes a binding decision

Management rights clauses

• Management rights clauses reserve certain rights and responsibilities to the employer, such as the right to direct the workforce, set production standards, and make business decisions
• These clauses aim to balance the employer's need for flexibility with the union's desire to protect employee interests
• Examples of management rights might include the right to determine staffing levels, introduce new technology, or change work schedules (within the limits of the CBA)

Strikes and lockouts

Economic vs unfair labor practice strikes

• An economic strike is a work stoppage by employees to pressure the employer to agree to their demands in collective bargaining, such as higher wages or better benefits
• An unfair labor practice strike is a work stoppage in response to the employer's unfair labor practices, such as refusing to bargain in good faith or discriminating against union supporters
• Unfair labor practice strikes have stronger legal protections for employees, such as the right to reinstatement after the strike ends

Replacements for striking workers

• During an economic strike, the employer can hire permanent replacements for striking workers, although the replaced workers are entitled to be recalled if positions become available
• During an unfair labor practice strike, the employer can only hire temporary replacements, and the striking workers are entitled to reinstatement when the strike ends
• The use of replacements is a contentious issue, as it can undermine the effectiveness of the strike and create tensions between strikers and replacements

Lockout strategies and rules

• A lockout is a refusal by the employer to allow employees to work, typically in response to a labor dispute or to pressure the union in collective bargaining
• Employers can use lockouts as a defensive tactic to prevent strikes or an offensive tactic to force concessions from the union
• Lockouts are subject to legal rules, such as the requirement that they be motivated by legitimate business reasons and not by anti-union animus

National Labor Relations Act

Protected concerted activities

• The NLRA protects employees' rights to engage in concerted activities for their mutual aid or protection, such as discussing working conditions, circulating petitions, or participating in strikes
• These activities are protected whether or not the employees are union members, as long as they are acting together and not solely for individual interests
• Examples of protected concerted activities include two or more employees discussing safety concerns, presenting a group complaint to management, or wearing union buttons at work

Union elections and certification

• The NLRA provides a process for employees to choose whether to be represented by a union through a secret ballot election conducted by the NLRB
• To initiate the process, the union must first demonstrate support from at least 30% of employees in the proposed bargaining unit, typically through signed authorization cards
• If the union wins the election by a majority vote, the NLRB certifies it as the exclusive representative of the bargaining unit, and the employer is required to bargain with the union in good faith

Decertification of unions

• Decertification is the process by which employees can remove a union as their exclusive representative
• Employees can file a decertification petition with the NLRB if at least 30% of the bargaining unit members support it, and if certain time requirements are met (such as not having a valid CBA in place)
• If a majority of employees vote to decertify the union in a secret ballot election, the union loses its certification and the employer is no longer required to bargain with it

Duty of fair representation

Union's obligations to members

• Unions have a legal duty to fairly represent all employees in the bargaining unit, regardless of whether they are union members or supporters
• This duty requires unions to act in good faith, without discrimination or arbitrary conduct, when negotiating and enforcing collective bargaining agreements
• Examples of breaches of the duty of fair representation include refusing to process a grievance because the employee is not a union member, negotiating a contract that favors some employees over others based on union politics, or failing to investigate a member's complaint adequately

Individuals vs union interests

• The duty of fair representation recognizes that individual employees' interests may sometimes conflict with the union's collective interests
• Unions are not required to satisfy every individual employee's demands or to pursue every grievance to arbitration, as long as they have a reasonable and good faith basis for their decisions
• However, unions cannot ignore or sacrifice individual rights in favor of the majority's interests, and they must have a fair process for considering and resolving competing concerns

Enforcement and remedies

NLRB's role and procedures

• The National Labor Relations Board (NLRB) is the federal agency responsible for enforcing the NLRA and adjudicating disputes between unions and employers
• The NLRB investigates unfair labor practice charges filed by employees, unions, or employers, and if it finds merit in the charge, it can issue complaints and hold hearings before administrative law judges
• The NLRB can order remedies for violations, such as requiring the employer to reinstate fired employees, bargain with the union, or post notices informing employees of their rights

Judicial review and appeals

• Parties can appeal NLRB decisions to the federal courts of appeals, which can enforce, modify, or set aside the NLRB's orders
• The courts generally defer to the NLRB's factual findings and interpretations of the NLRA, but they can overturn decisions that are not supported by substantial evidence or that misconstrue the law
• The U.S. Supreme Court has the final say on NLRA issues, but it only takes a small number of labor cases each year

Injunctions and damages

• In addition to the NLRB's remedies, unions and employers can seek injunctions and damages through the courts for certain violations of the NLRA or the collective bargaining agreement
• Unions can sue employers for breaching the contract, and employers can sue unions for engaging in illegal strikes or pickets
• Employees can sue unions for breaching the duty of fair representation, and they can recover damages such as back pay, attorney's fees, and even punitive damages in some cases