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Bargaining in good faith with employees' union representative (Section 8(d) & 8(a)(5))

Employers have a legal duty to bargain in good faith with their employees' representative and to sign any collective bargaining agreement that has been reached. This duty encompasses many obligations, including a duty not to make certain changes without bargaining with the union and not to bypass the union and deal directly with employees it represents. These examples barely scratch the surface. Given the complexity and importance of this subject, employers should . . .

Section 8(d) of the Act sets forth what is encompassed within the duty to bargain collectively. Section 8(a)(5) of the Act makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of its employees, subject to the provisions of Section 9(a)" of the Act. (An employer that violates Section 8(a)(5) also derivatively violates Section 8(a)(1).) For example, you may not

  • Make changes in wages, hours, working conditions, or other mandatory subjects of bargaining before negotiating with the union to agreement or overall impasse, unless (1) the union prevents the parties from reaching agreement or impasse; (2) economic exigencies compel prompt action; or (3) the proposed change concerns a discrete, recurring event scheduled to recur in the midst of bargaining (such as an annual merit-wage review), and you give the union notice and opportunity to bargain over that matter.
  • Fail to meet with the union at reasonable times and reasonable intervals.
  • Fail to bargain in good faith concerning mandatory subjects of bargaining.
  • Engage in bad-faith, surface, or piecemeal bargaining.
  • Refuse to furnish information the union requests that is relevant to the bargaining process or to the employees' terms or conditions of employment.
  • Refuse to sign a writing that incorporates a collective-bargaining agreement you have reached with the union.
  • Modify any term of a collective-bargaining agreement without the union's consent.
  • Make unilateral changes in terms and conditions of employment during the term of a collective-bargaining agreement, unless the union has clearly and unmistakably waived its right to bargain or the change is too minor to require bargaining. (Do not assume that a change you deem minor would be so viewed by the Board.)
  • Refuse to bargain over the effects of a change in the scope and direction of your enterprise, even though you need not bargain over the change itself because it concerns a matter at the core of your entrepreneurial control of your business. (Whether a proposed change is a nonbargainable "scope and direction" change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable "scope and direction" change.)
  • Refuse to recognize and bargain with a union that represents employees of an employer whose business you are acquiring if you are a Burns successor. See NLRB v. Burns International Security Services, 406 U.S. 272 (1972). You are a Burns successor if you hire the majority of your employees from the predecessor's workforce, and from their perspective day-to-day life at work remains largely unchanged. (You may, however, before hiring your workforce, set initial terms and conditions of employment without bargaining with the union, unless you are a "perfectly clear" Burns successor. See below.)
  • Set initial terms and conditions of employment before bargaining with the union if you are a "perfectly clear" Burns successor - that is, if you make it perfectly clear that you plan to retain all of the predecessor's employees, or at least enough of them to make it evident that the union's majority status will continue, without informing them that they will be expected to work under different terms.
  • Refuse to recognize and bargain with a union that represents employees of an employer whose business you are acquiring, if you refuse to hire the predecessor's employees because they are unionized. In other words, if you discriminate in hiring to avoid becoming a Burns successor, you become a Burns successor - and a "perfectly clear" one at that. See below.
  • Set initial terms and conditions of employment before bargaining with the union, if you acquire a business and refuse to hire employees of the predecessor to avoid becoming a Burns successor.
  • Set initial terms and conditions of employment before bargaining with the union, if you are a Burns successor and you tell your employees that you will not permit them to be represented by the union.
  • Evade your bargaining or contractual duties under the Act by transferring operations to a nominally different business entity that is merely the disguised continuance or "alter ego" of your former unionized business.
  • Bypass the union and deal directly with employees. (However, you may communicate to your employees accurate information about your bargaining proposals.)
  • Refuse to furnish, or unreasonably delay in furnishing, information the union requests that is relevant to and reasonably necessary for the performance of its representative functions, with certain exceptions.
  • Insist to impasse on a proposal concerning a permissive subject of bargaining, or require agreement on a permissive subject as a precondition to further bargaining. Permissive subjects include, for example, unit scope, selection of a bargaining representative, internal union affairs, and settlement of unfair labor practice charges.
  • Insist to impasse on a proposal concerning an illegal subject of bargaining, or include an illegal clause in a labor contract. Illegal subjects include, for example, a proposal to make the contract terminable at will or to give the employer the right to discharge employees for union activity.
  • Lock out employees in support of an impermissible objective - e.g., to pressure the union to accept an illegal bargaining proposal, a bad-faith bargaining position, or terms unilaterally implemented absent a valid impasse.
  • Lock out employees to pressure the union to consent to a midterm contract modification.
  • Lock out employees over a permissive subject of bargaining.
  • Lock out employees without clearly informing them of the conditions they must meet to be reinstated.
  • Declare impasse and refuse to bargain where a valid impasse has not been reached.
  • Declare impasse and implement terms where a valid impasse has not been reached.
  • Declare impasse and implement terms not encompassed within a preimpasse offer.
  • Implement, upon impasse, a wage proposal vesting in you unlimited discretion over future pay increases, or any other proposal that would be unlawful under the Board's reasoning in McClatchy Newspapers, 321 NLRB 1386 (1996).
  • File an election (RM) petition if you lack a good-faith, reasonable uncertainty that the incumbent union still enjoys majority support.
  • Poll your represented employees concerning their support for the incumbent union if you lack a good-faith, reasonable uncertainty that the union still enjoys majority support.
  • Withdraw recognition from a union that enjoys majority support.
  • Withdraw recognition from a union that has lost majority support if you assisted the employees' antiunion petition effort or undermined their union support through unfair labor practices.
  • File an election (RM) petition, poll your represented employees, or withdraw recognition from a Board-certified union during the union's certification year or Board-ordered extension thereof.
  • File an election (RM) petition, poll your represented employees, or withdraw recognition from a union (1) you recognized voluntarily, or (2) with whom the Board has ordered you to bargain, or (3) with whom you have agreed to bargain as part of a settlement agreement, or (4) with whom you have acquired a bargaining relationship from a unionized predecessor before a reasonable time for bargaining has elapsed.
  • File an election (RM) petition, poll your represented employees, or withdraw recognition from a union during the term of a collective-bargaining agreement, up to three years.
  • Terminate or modify a collective-bargaining agreement without serving written notice on the union at least 60 days (90 days if you are a healthcare employer) before the expiration date of the contract.
  • Terminate or modify a collective-bargaining agreement without giving notice to federal and state mediators within 30 days (60 days if you are a healthcare employer) of serving written notice on the union that you are terminating or modifying the contract.
  • Lock out employees before 60 days have passed (90 days if you are a healthcare employer) after you serve written notice on the union that you are terminating or modifying the contract or before the expiration date of the contract, whichever is later.
  • Lock out employees if you are the initiating party of a contract modification or termination, and you fail to give notice to federal and state mediators within 30 days (60 days if you are a healthcare employer) of serving written notice on the union that you are terminating or modifying the contract.
  • Terminate or modify a collective-bargaining agreement without offering to meet and bargain concerning a new or modified contract.
  • Change the status quo from the time a board of inquiry is appointed under Section 213 of the Labor Management Relations Act until 15 days after it issues its report (applies to healthcare employers only).

However, you may, for example

  • Adopt or assume a unionized predecessor's collective-bargaining agreement when you acquire its business, continue its operations largely unchanged, and hire a majority of your employees from the predecessor's workforce. You may also decline to adopt or assume a predecessor's collective-bargaining agreement and set initial terms and conditions of employment without bargaining. The right to set initial employment terms ends once you have hired a substantial and representative complement of employees, a majority of whom are drawn from the predecessor's workforce. (You may not, however, set initial terms and conditions without bargaining if you are a "perfectly clear" Burns successor - that is, if you make it perfectly clear that you plan to retain all of the predecessor's employees, or at least enough of them to make it evident that the union's majority status will continue, without informing them that they will be expected to work under different terms.)
  • Bargain with the union separately or through a multi-employer association (if all members of the multi-employer group agree to be bound and the union consents).
  • Bargain hard, provided you seek in good faith to reach an agreement.
  • Bargain with the union concerning permissive subjects of bargaining, but not to impasse.
  • Lock out your employees where your sole purpose in doing so is to bring economic pressure to bear in support of a legitimate bargaining position.
  • Implement terms encompassed within a preimpasse offer if negotiations with the union have reached a valid impasse.
  • Make changes in the scope and direction of your enterprise - matters that lie at the core of your entrepreneurial control of your business - without bargaining about the change. You must, however, bargain with the union concerning the effects of the change on unit employees. (Whether a particular change is a nonbargainable "scope and direction" change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable "scope and direction" change.)
  • Make unilateral changes that are minor, or where the union has clearly and unmistakably waived bargaining. (Do not assume that a change you deem minor would be so viewed by the Board.)
  • Withdraw recognition from a union after the collective-bargaining agreement expires. This applies only to employers in the construction industry whose bargaining relationship with the union is governed by Section 8(f) of the Act, not Section 9(a).
  • Withdraw recognition from a union that has actually lost majority support if the union's presumption of majority status is rebuttable. (A union enjoys an irrebutable presumption of majority status (1) during the certification year and any extensions thereof; (2) for a "reasonable period" following voluntary recognition, Burns successorship, a settlement agreement in which you agree to bargain, or the Board's issuance of an affirmative bargaining order; and (3) during the term of a collective-bargaining agreement, up to 3 years.)
  • Poll your employees concerning their support for the incumbent union if the union's presumption of majority status is rebuttable (see above), and you have a good-faith, reasonable uncertainty that the union still enjoys majority support. The union must be given reasonable advance notice of the time and place of the poll, and the poll must be conducted in accordance with certain safeguards. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. In addition, you must (1) communicate to employees that the purpose of the poll is to determine whether the union enjoys majority support (and that must, in truth, be your purpose); (2) give employees assurances against reprisal; and (3) conduct the poll by secret ballot.
  • Refuse to discuss or agree to any modification of the terms of an existing contract. You may also consent to do so.

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