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Bargaining Obligations

The law only requires the parties to bargain in good faith. Legal action requires evidence of unfair labor practices regarding this duty. Skillful negotiators usually are sufficiently creative to avoid the appearance of surface bargaining (i.e. negotiating without intending to reach an agreement). The legal framework for negotiations is not concerned with fairness because the specific content of bargaining is unregulated. In fact, by determining the subject matter of bargaining, thus deciding what can be discussed, the law sometimes restricts fairness. An example is the limitation placed on a union’s ability to bargain over benefits accruing to those outside the bargaining unit. Because of this, the union cannot strike over a management decision to reduce or eliminate retiree health benefits.

During life of agreement
Unilateral changes in terms or working conditions are prohibited while a contract is in effect, and after certification or recognition while bargaining is on-going. Employers are required to negotiate over any changes proposed. The union is under no obligation to adopt or agree to these changes.

The union’s ability to challenge an employer’s actions may be limited by the following:

	Specific contractual provisions allow the change.
	The clear intent of the parties expressed during negotiations allows the change.
	The right to challenge was waived due to failure during negotiations to limit such action.
	The union failed to challenge such action previously or it was allowed under past practice
	A contractual “zipper” clause is in effect (contract language waiving the right of the union to bargain over matters it had the opportunity to bargain over during contract negotiations).

An employer may go out of business for any purpose. There is no duty to negotiate over basic capital decisions if they are not motivated by labor costs considerations. If a closing decision concerns the “basic scope, direction or nature of the business,” the duty to bargain extends only to effects of decision. A partial closing may be prevented only where there is specific work preservation language in the contract.

Note: Under the Worker Adjustment and Retraining Notification (WARN) Act, an employer must give a 60 day advance notice of mass layoff or closing. (affecting 100 or more employees).
Department of Labor WARN Fact Sheet (PDF file)

Click the link below to view the Department of Labor WARN compliance guidelines.
External Web Link: http://www.dol.gov/dol/compliance/comp-warn.htm

Expiration of the Agreement

The duty to bargain after the life of the contract depends, in part, on contract language specifying which areas remain in force. There may be continuing arbitrability for grievances that arose before the expiration date. Employers must bargain with the union concerning disciplinary issues and must furnish relevant information when it is requested.

Information Requests

Section 8(d) of the National Labor Relations Act gives a broad right for the union to request detailed information related to all aspects of the bargaining relationship. This right extends to any information related to grievances. Employer refusal to provide information relevant to negotiations or the grievance procedure is an unfair labor practice (ULP) under Section 8(a)5. Section 8(a)(5) – note, this change is in effect for all citations of the statute. It is recommended that a ULP charge be filed with the National Labor Relations Board rather than a grievance.

National Labor Relations Board Deferral Doctrine

For more information on project agreements, click here.

Bargaining Tactics

Economic Pressure
Picketing

Click for sample handbills:
External Web Link: http://www.labor.iu.edu/organizeindiana/res-leaflet.htm