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Subjects of Bargaining

The law only requires the parties to bargain in good faith. The context for legal action involves evidence of unfair labor practices regarding this duty. Skillful negotiators (on both sides) generally are creative enough to avoid the appearance, at least, of surface bargaining. The legal framework for negotiations is not concerned with fairness because the specific content of bargaining is unregulated. In fact, the law sometimes restricts fairness by determining the subject matter of bargaining, thus deciding what must be discussed (mandatory subjects). An example of a permissive subject is the limitation placed on a union’s ability to bargain over benefits accruing to those outside the bargaining unit, such as retirees. Because of this, the union cannot strike over an employer decision to reduce or eliminate retiree health benefits.

Mandatory Subjects - directly related to wages, hours, working conditions

	Either party proposes, the other must negotiate
	Can insist on inclusion in the contract to the point of impasse
	Legal to strike or lockout to obtain

Illegal Subjects - violates any labor law

	Any attempt to negotiate is unlawful
	Strike or lockout in support is illegal
	Any illegal contract clause invalid and unenforceable

Permissive - neither mandatory or illegal

	Represent bargaining on behalf of persons not in the unit (retirees, supervisors or applicants)
	Normally considered matters in purview either of union or mgmt (pricing, capital investment decisions not involving labor costs, internal union discipline)
	Ground rules of negotiations (means of reaching agreement)
	Negotiators, ratification, interest arbitration, strike settlement agreements
	Remote connection to wages, hours, terms of employment
	Irrelevant proposals

Other considerations for permissive subjects

	Any agreement reached on a permissive subject is enforceable but only through a court suit for breach of contract and not by an unfair labor practice charge.
	Neither party can insist on negotiation to impasse.
	No linking to mandatory subjects(cannot condition acceptance of mandatory subject to permissible subject).
	Permissible subjects remain permissible, even if included in previous contract.

Reaching agreement on all of the mandatory items may spell the end of negotiations, even though important permissible items remain on the table. Thus, the early rounds of bargaining usually concern issues that may seem trivial in relation to the major issues at stake.

Hot cargo agreements were limited by Taft-Hartley but voluntary agreements which sanctioned secondary strikes were not prohibited. Such agreements were finally outlawed in 1959 and removed from scope of bargaining.