Collective Bargaining as a Tool Flashcards
Models of CB Process
1) NLRA
2) Public Sector
3) RLA
NLRA model
Regulate the process, NOT the result through the NLRB
NLRB v. Inruance Agents
Economic pressure tactics like sit-ins, picketing, and leafleting are NOT a failure to collectively bargain in good faith
NLRB v. Katz
Unilaterally changing a condition of employment subject to mandatory CB violates an Er’s duty to bargain in good faith
Unilaterally changing term under negotiation circumvents the duty to bargain and undermines the duty to bargain
8D - good faith for what?
To meet and confer about hours, wages, and other employment terms and conditions
Impasse
Case dependent and based on the extent of good faith, history of bargaining, length of negotiations, importance of outstanding issues, understanding of parties
RLA Model
Creates mediation structure that requires the two parties to exert reasonable efforts to maintain agreements
ANY PARTY CAN ASK FOR MEDIATION!
American Train Dispatchers
Refusal to listen to the mediator is a ULP no matter what
Public Sector
Most state laws do not allow strikes, but instead use mediation, fact-finding, and arbitration
If arb. is required, prohibit unilateral changes of work conditions by er
Philadelphia Housing Authority
2 preconditions must be met before the ER can be bound and implement unilateral action: (1) impasse + (2) cessation of work
Surface Bargaining
going through the motions, no intent to reach agreement
proven through totality of circumstances (direct evidence, circumstantial evidence)
8D - good faith objective requirements
meet at reasonable times, bargain over wages/hours/conditions of employment without unilateral impasse, reduce to writing if asked
Regressive bargaining
taking back prior offers without explaination, unilaterally changing more than offer union
Duty to supply information
Truitt - 8a5
provide relevant informaion needed by a labor union for the proper performance of its duties as the employees bargaining unit - Detroit Edison
Mandatory things to disclose
wage data
financial data on profitability of the firm when they make this an issue
in the enforcement of the collective agreement
Acme Industrial
Only get this information through collective agreement enforcement
Detroit Edison
There are exceptions to to mandatory supplies including burden on the employer and employee privacy
Burden of Proof for Supplying
On union to prove its relevant to the union specific ees
What does the exchange of information avoid?
Lockout and strikes
RLA - surface bargaining
Not as logical because the mediator can hold the parties to continue to schedule meetings & pressure the parties to make concessions
Surface Bargaining - Public Sector
Resorts to interest arbitration limits effectiveness
There is a narcotic effect on negotiations but is minimized with last best offer
NLRB v. American National Insurance
Negotiating for a management-functions clause exempting certain conditions of employment from arbitration does not violate the duty to bargain collectively
What does the NLRA not compel parties to do?
Enter agreements or regulate their substantive terms
8(d) - clarified CB obligations do not compel unions/ers to accept particular concessions and proposals
Hardesty Company Inc.
8d requires employers to confer and bargaining in good faith with respect to wages, hours, and conditions of employment
What to demonstrate bargaining in good faith?
circumstantial evidence
Direct dealing
involves dealing with employees and bypassing the union about a mandatory subject of bargaining
Mercy Health Partners
Direct dealing violation occurs when:
ER communicated directly with union-represented ees
The discussion was for the purpose of establishing or changing wages, hours, and terms/conditions undercutting the union’s role in bargaining
such communication was made to the exclusion of the union
Effect of Strike on Duty to Bargain
parties are not required to engage in fruitless bargaining after impasse, but the fact of a strike does not itself negate the obligation to bargain
8d
Mandatory bargaining subjects
wages, hours
cannot unilaterally change until impasse, can strike before impasse
Permissive bargaining subjects
internal operations of unions, org. of management, more)
obligation to bargain (but not mand.), cannot bargain to impasse/strike on this
CAN unilaterally change
Includes benefits of retirees
Prohibited subjects of bargiaing
hot cargo clause, discrimiantion clauses
bargaining prohibited, unenforceable, ULP/violate other laws
UAW v. NLRB
8d - forbids neither the announcement of a intention to relocate or the financial decision to relocate
scope of mandatory bargaining is if it CONTAINS IN THE CONTRACT!
When a mandatory subject is NOT contained in the K
an employer must bargain in good faith to impasse
Fiberboard Paper Products
An employer must bargain with the union before contracting out work done by represented employees
Mandatory v. Partial
Partial closures for purely economic reasons are NOT subject to mandatory bargaining
First National Maintenance Corp.
Partial closure for purely economic reasons are not OK to bargain (all about the business flow, not about anti-union)
Management decisions on indirect impact
Only those that have a indirect impact on employment relations (example, ads, style of product), there is NO OBLIGATION TO BARGAIN
Management decisions on exlusively aspect of ER relations
wages, hours - obligation to bargain
Direct Impact on employment - management decisions
Apart from direct ee/er relationship, CB only a problem amenable to solution through CB
Balance between CB and Management
Benefits of CB > Burdens of Mgmt
Dubuque Packing (KEY!)
Relocations prompted by labor costs, not basic operational changes, require bargaining settlement with unions to remain possible
ER must bargain over replacing union working with subcontractors, but not in partial closings
NLRB rebuttable presumption test
ER can prove:
1) work at new location differs a lot from the work at old one
2) move reflects a change in the business’s scope and direction
3) the employer may show labor costs DID not motivate the decision or the union couldn’t and would not offer enough concessions to prevent
Rebuttable presumption test exemption
objective entreprenuial reasons or subjective reasons other than costs, along with moves that negotiations would be futile
HK Porter CO
the NLRB may not compel parties to substantive terms in CB agreements
Metro Seattle
PERC has some authority - interest arbitration and grievance arbitration are different!
Interest arbit.
occurs at the point where an impasse has been reached in PERC
Grievance arbit.
require Er and union to submit unresolved disputes about interpreation/application f existing CB
Ex-Cell-O
Board cannot award compensatory damages for failure to bargain in good faith as that amounts to determining substance
