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Collective Bargaining

Section 1 of the NLRA declares that the policy of the United States is to encourage “the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”​

Duty to Bargain in Good Faith: Good faith bargaining requires the employer and the union to meet at reasonable times, to confer in good faith about certain matters, and to put into writing any agreement reached if requested by either party. Good faith bargaining must occur with respect to wages, hours and other terms or conditions of employment, the negotiation of an agreement, or any question arising under an agreement.

These obligations are imposed equally on the employer and the union. The obligation does not compel either party to agree to a proposal by the other, nor does it require either party to make a concession to the other.

In 2012, the NLRB held that the duty to bargain in good faith about discretionary discipline might be triggered even before there is a first collective bargaining agreement put in place.

Waiver of State Employment Rights: The Ninth Circuit Court of Appeals ruled that a unionized employer cannot use its collective bargaining agreement (CBA) as an excuse for failing to meet state employment law requirements. The only exception occurs where state law permits waiving those requirements and the waiver is described in clear and unmistakable language in the CBA.

When employees filed a lawsuit claiming that they were denied meal and rest breaks mandated by the California Labor Code, the employer argued that the right to meal and rest breaks is negotiable and can be waived by a CBA. The employer relied on the principle that federal labor law governing collective bargaining generally trumps state employment regulation of union contracts. The court disagreed, ruling that meal and rest breaks are an unconditional, nonnegotiable right provided by state law for the benefit of individual employees.

The 2010 revisions to Section 512 of the California Labor Code except certain limited categories of employees (i.e., construction, commercial driver, security services, or utility employees) from California’s meal period requirements if the following conditions are satisfied: (1) the employee is covered by a valid collective bargaining agreement; and (2) the valid collective bargaining agreement expressly provides for the wages, hours of work, and working conditions of employees, including provisions for meal periods, final and binding arbitration of disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.

In addition, Labor Code Section 514 and some California Wage Orders contain a similar exemption for overtime for certain employees covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage.

Multi-Employer Bargaining: When a history of bargaining exists between a union and a number of employers acting jointly, the employees represented constitute a multi-employer bargaining unit. After such a unit is established, any of the participating employers — or the union — may withdraw from this multi-employer bargaining relationship only by mutual assent or by a timely submitted withdrawal. Withdrawal is considered timely if unequivocal notice of the withdrawal is given near the termination of a CBA, but before bargaining begins on the next agreement.

Ending or Changing a Contract: Where there is a collective bargaining agreement covering employees in an industry affecting commerce, the duty to bargain collectively means that no party to such contract shall terminate or modify that contract, unless the party desiring such termination or modification does each of the following:​

1. Notifies the other party to the collective bargaining agreement, in writing, about the proposed termination or modification 60 days before the date on which the collective bargaining agreement is scheduled to expire. If the collective bargaining agreement is not scheduled to expire on any particular date, the notice in writing must be served 60 days before the time when it is proposed that the termination or modification take effect.
   
2. Offers to meet and confer with the other party for the purpose of negotiating a new collective bargaining agreement or a collective bargaining agreement containing the proposed changes.
   
3. Within 30 days after the notice to the party, notifies the Federal Mediation and Conciliation Service of the existence of a dispute if no agreement is reached by that time. The party must also notify, at the same time, any state or territorial mediation or conciliation agency in the state or territory where the dispute occurred.
   
4. Continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing collective bargaining agreement until 60 days after the notice to the other party was given or until the date the contract is scheduled to expire, whichever is later.
   

In the case of a health care institution, the requirement in numbers one and four is 90 days and, in number three, is 60 days. In addition, there is a 30-day notice requirement to the agencies in number three when a dispute arises in bargaining for an initial collective bargaining agreement.

The requirements of numbers two, three and four above cease to apply if the NLRB certifies that the union was replaced by a different representative or was voted out by the employees.

Neither party is required to discuss or agree to any change of the provisions of the collective bargaining agreement if the other party proposes that the change become effective before the provision could be reopened according to the terms of the contract.

Successor Employers: An employer that purchases or otherwise acquires the operations of another employer may be obligated to recognize and bargain with the union that represented the employees before the business was transferred. In general, these bargaining obligations exist — and the purchaser is termed a successor employer — when a substantial continuity in the employing enterprise exists despite the sale and transfer of the business. Whether the purchaser is a successor employer depends on several factors, including the number of bargaining unit employees taken over by the purchasing employer, the similarity in operations and product of the two employers, the manner in which the purchaser integrates the purchased operations into its other operations and the character of the bargaining relationship and agreement between the union and the original employer.​

Subjects of Bargaining: All matters concerning rates of pay, wages, hours of employment or other terms and conditions of employment are “mandatory” subjects of bargaining about which the employer, as well as the employees’ representative, must bargain in good faith. Mandatory subjects of bargaining include such matters as pension plans for present employees, bonuses, group insurance, grievance procedures, safety practices, seniority, procedures for discharge, layoff, recall or discipline, and union security. The NLRA does not require either party to agree to a proposal or require the making of a concession.

Certain managerial decisions, such as subcontracting, relocation and other operational changes, may not be mandatory subjects of bargaining even though they affect employees’ job security and working conditions. The issue of whether these decisions are mandatory subjects of bargaining depends on the employer’s reasons for taking action. Even if the employer is not required to bargain about the decision itself, it must bargain about the decision’s effects on unit employees.

On “nonmandatory” subjects, matters that are lawful but not related to “wages, hours and other conditions of employment,” the parties are free to bargain and to agree, but neither party may insist on bargaining on such subjects to the point of impasse or as a condition to reaching an ultimate contract.

Violating an Employer’s Duty to Bargain: An employer may violate the duty to bargain if the employer’s conduct in bargaining, viewed in its entirety, indicates that the employer did not negotiate with a good faith intention to reach agreement. However, an employer’s good faith is not at issue when its conduct constitutes an out-and-out refusal to bargain on a mandatory subject. Some examples:​

• An employer may not refuse to meet with the employees’ representative because the employees are out on strike.
  
• An employer may not insist, until bargaining negotiations break down, on a contract provision that all employees will be polled by secret ballot before the union calls a strike.
  
• An employer may not fail to bargain about the effects of a decision to close one of the employer’s plants.
  
• An employer may not dictate to a union its selection of agents or representatives and the employer must, in general, recognize the designated agent. The duty of an employer to meet and confer with the representative of its employees generally includes the duty to deal with whomever is designated by the employees’ representative to carry on negotiations.
  
• An employer may not refuse to supply, upon request, information that is “relevant and necessary” to allow the employees’ representative to bargain intelligently and effectively with respect to wages, hours and other conditions of employment. Refusing to supply cost and other data concerning a group insurance plan covering the employees is also a violation of the duty to bargain.
  
• An employer normally may not make unilateral changes to material terms and conditions of employment without consulting the employees’ representative (i.e., announcing a wage increase without consulting the employees’ representative is a violation).