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C H A P T E R 15 Collective Bargaining
Employees join unions to gain some influence over their working conditions and wages; that influence is achieved through the process called collective bargaining. Section 8(d) of the National Labor Relations Act (NLRA) defines collective bargaining as [t]he performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder. . . . This process of meeting and discussing working conditions is actually a highly stylized and heavily regulated form of economic conflict. Within the limits of conduct spelled out by the National Labor Relations Board (NLRB) under the NLRA, the parties exert pressure on each other to force some concession or agreement. The union’s economic pressure comes from its ability to withhold the services of its members—a strike. The employer’s bargaining pressure comes from its potential to lock out the employees or to permanently replace striking workers. The NLRB and the courts, through their interpretation and administra- tion of the NLRA, have limited the kinds of pressure either side may exert and how such pressure may be applied. This chapter examines the collective bargaining process and the legal limits placed on that process.
15-1 The Duty to Bargain
An employer is required to recognize a union as the exclusive bargaining representa- tive of its employees when a majority of those employees support the union. The union may demonstrate its majority support either through signed authorization cards or by winning a representation election. Once aware of the union’s majority support, the employer must recognize and bargain with the union according to the process spelled out in Section 8(d). Section 8(a)(5) makes it an unfair labor practice for an employer to refuse to bargain with the representative of its employees, and Section 8(b)(3) makes it an unfair practice for a union representing a group of employees to refuse to bargain with their employer. Although the NLRA imposes an obligation to bargain collectively upon both employer and union, it does not control the results of the bargaining process. Section 8(d) makes it clear that the obligation to bargain “does not compel either party to agree to a proposal or require the making of a concession.” The act thus reflects an ambivalence regarding the duty to bargain in good faith. The parties, to promote industrial relations harmony, are required to come together and negotiate, but in deference to the principle of freedom of contract, they are not required to reach an agreement. This tension between the goal of promoting industrial peace and the principle of freedom of contract underlies the various NLRB and court decisions dealing with the duty to bargain. The accommodation of these conflicting ideas makes the area a difficult and interesting aspect of labor relations law. If the parties are required to negotiate, yet are not required to reach an agreement or even to make a concession, how can the Board determine whether either side is bargaining in good faith? Section 8(d) requires that the parties meet at reasonable times to discuss wages, hours, and terms and conditions of employment. It also requires that any agree- ment reached must be put in writing if either party so requests. But Section 8(d) does not speak to bargaining tactics. Is either side free to insist upon its proposal as a “take-it-or- leave-it” proposition? Can either side refuse to make any proposal? These questions must be addressed in determining what constitutes bargaining in good faith. 15-1a Bargaining in Good Faith Section 8(a)(5) requires that the employer bargain with a union that is the represen- tative of its employees according to Section 9(a). Section 9(a) states that a union that has the support of a majority of employees in a bargaining unit becomes the exclusive bargaining representative of all employees in the unit. That section also states that the employer may address the grievances of individual employees as long as it is done in a manner consistent with the collective agreement and the union has been given an oppor- tunity to be present at such adjustment. That provision raises the question of how far the employer can go in dealing with individuals rather than the union. In J. I. Case Co. v. NLRB,1 the Supreme Court held that contracts of employment made with individual employees were not impediments to negotiating a collective agreement with the union. J. I. Case had made it a practice to sign yearly individual contracts of employment with its employees. When the union, which won a representation election, requested bargaining over working conditions, the company refused. The employer argued that the individual contracts covered those issues and no bargaining could take place until those individual contracts had expired. The Supreme Court held that the individual contracts must give way to allow the negotiation of a collective agreement. Once the union is certified as the exclusive bargaining representative of the employees, the employer cannot deal with the individual employees in a manner inconsistent with the union’s status as exclusive repre- sentative. To allow individual contracts of employment to prevent collective bargaining would undercut the union’s position. What about the situation in which individual employees attempt to discuss their griev- ances with the employer in a manner inconsistent with the union’s role as exclusive repre- sentative? How far does the Section 9(a) proviso go to allow such discussion? That question is addressed in the following Supreme Court decision.
CASE 15.1 Emporium CapwEll Co. v. wEstErn addition Community organization 420 U.S. 50 (1975)
[Emporium Capwell Co. operates a department store in San Francisco. The company had a collective bargaining agree- ment with the Department Store Employees Union. The agreement, among other things, included a prohibition of employment discrimination because of race, color, reli- gion, national origin, age, or sex. The agreement also set up a grievance and arbitration process to resolve any claimed violation of the agreement, including a violation of the nondiscrimination clause.] Marshall, J. This litigation presents the question whether, in light of the national policy against racial discrimination in employment, the National Labor Relations Act protects concerted activity by a group of minority employees to bargain with their employer over issues of employment discrimination. . . . On April 3, 1968, a group of Company employees covered by the agreement met with the Secretary-Treasurer of the Union, Walter Johnson, to present a list of grievances including a claim that the Company was discriminating on the basis of race in making assignments and promotions. The Union official agreed to take certain of the grievances and to investigate the charge of racial discrimination. He appointed an investigating committee and prepared a report on the employees’ grievances, which he submitted to the Retailer’s Council and which the Council in turn referred to the Company. The report described “the possibility of racial discrimination” as perhaps the most important issue raised by the employees and termed the situation at the Company as potentially explosive if corrective action were not taken. It offered as an example of the problem the Company’s failure to promote a Negro stock employee regarded by other employees as an outstanding candidate but a victim of racial discrimination. Shortly after receiving the report, the Company’s labor relations director met with Union representatives and agreed to “look into the matter” of discrimination and see what needed to be done. Apparently unsatisfied with these representations, the Union held a meeting in September attended by Union officials, Company employees, and representatives of the California Fair Employment Practices Committee (FEPC) and the local antipoverty agency. The Secretary-Treasurer of the Union announced that the Union had concluded that the Company was discriminating, and that it would process every such grievance through to arbitration if necessary. Testimony about the Company’s practices was taken and transcribed by a court reporter, and the next day the Union notified the Company of its formal charge and demanded that the joint union-management Adjustment Board be convened “to hear the entire case.” At the September meeting some of the Company’s employees had expressed their view that the contract proce- dures were inadequate to handle a systemic grievance of this sort; they suggested that the Union instead begin picketing the store in protest. Johnson explained that the collective agreement bound the Union to its processes and expressed his view that successful grievants would be helping not only themselves but all others who might be the victims of invidious discrimination as well. The FEPC and antipoverty agency representatives offered the same advice. Nonetheless, when the Adjustment Board meeting convened on October 16, James Joseph Hollins, Tom Hawkins, and two other employees whose testimony the Union had intended to elicit refused to participate in the grievance procedure. Instead, Hollins read a statement objecting to reliance on correction of individual inequities as an approach to the problem of discrimination at the store and demanding that the president of the Company meet with the four protes- tants to work out a broader agreement for dealing with the issue as they saw it. The four employees then walked out of the hearing. Hollins attempted to discuss the question of racial discrimination with the Company president shortly after the incidents of October 16. The president refused to be drawn into such a discussion but suggested to Hollins that he see the personnel director about the matter. Hollins, who had spoken to the personnel director before, made no effort to do so again. Rather, he and Hawkins and several other dissident employees held a press conference on October 22 at which they denounced the store’s employment policy as racist, reiterated their desire to deal directly with “the top management” of the Company over minority employment conditions, and announced their intention to picket and institute a boycott of the store. On Saturday, November 2,Hollins, Hawkins, and at least two other employees pick- eted the store throughout the day and distributed at the entrance handbills urging consumers not to patronize the store. Johnson encountered the picketing employees, again urged them to rely on the grievance process, and warned that they might be fired for their activities. The picketers, however, were not dissuaded, and they continued to press their demand to deal directly with the Company president. On November 7, Hollins and Hawkins were given written warnings that a repetition of the picketing or public statements about the Company could lead to their discharge. When the conduct was repeated the following Saturday, the two employees were fired. Respondent Western Addition Community Organization, a local civil rights association of which Hollins and Hawkins were members, filed a charge against the Company with the National Labor Relations Board. After a hearing the NLRB Trial Examiner found that the discharged employees had believed in good faith that the Company was discriminating against minority employees, and that they had resorted to concerted activity on the basis of that belief. He concluded, however, that their activity was not protected by Section 7 of the Act and that their discharges did not, therefore, violate Section 8(a)(1). The Board, after oral argument, adopted the findings and conclusions of its Trial Examiner and dismissed the complaint. Among the findings adopted by the Board was that the discharged employees’ course of conduct: . . . was no mere presentation of a grievance, but nothing short of a demand that the [Company] bargain with the picketing employees for the entire group of minority employees. Central to the policy of fostering collective bargaining, where the employees elect that course, is the principle of majority rule. If the majority of a unit chooses union representation, the NLRA permits them to bargain with their employer to make union membership a condition of employment, thereby imposing their choice upon the minority. . . . In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, in full awareness that the superior strength of some indi- viduals or groups might be subordinated to the interest of the majority. In vesting the representatives of the majority with this broad power Congress did not, of course, authorize a tyranny of the majority over minority interests. . . . we have held, by the very nature of the exclusive bargaining representa- tive’s status as representative of all unit employees, Congress implicitly imposed upon [the union] a duty fairly and in good faith to represent the interests of minorities within the unit. And the Board has taken the position that a union’s refusal to process grievances against racial discrimination, in violation of that duty, is an unfair labor practice. . . . Plainly, national labor policy embodies the principles of nondiscrimination as a matter of highest priority . . . These general principles do not aid respondent, however, as it is far from clear that separate bargaining is necessary to help eliminate discrimination. Indeed, as the facts of this case demonstrate, the proposed remedy might have just the opposite effect. The collective bargaining agree- ment in this case prohibited without qualification all manner of invidious discrimination and made any claimed violation a grievable issue. The grievance procedure is directed precisely at determining whether discrimination has occurred. That orderly determination, if affirmative, could lead to an arbitral award enforceable in court. Nor is there any reason to believe that the processing of griev- ances is inherently limited to the correction of individual cases of discrimination. The decision by a handful of employees to bypass the grievance procedure in favor of attempting to bargain with their employer, by contrast, may or may not be predicated upon the actual existence of discrimination. An employer confronted with bargaining demands from each of several minority groups would not necessarily, or even probably, be able to agree to reme- dial steps satisfactory to all at once. Competing claims on the employer’s ability to accommodate each group’s demands, e.g., for reassignments and promotions to a limited number of positions, could only set one group against the other even if it is not the employer’s inten- tion to divide and overcome them. Having divided them- selves, the minority employees will not be in position to advance their cause unless it be by recourse seriatim to economic coercion, which can only have the effect of further dividing them along racial or other lines. Nor is the situation materially different where, as apparently happened here, self-designated representatives purport to speak for all groups that might consider themselves to be victims of discrimination. Even if in actual bargaining the various groups did not perceive their interests as divergent and further subdivide themselves, the employer would be bound to bargain with them in a field largely preempted by the current collective bargaining agreement with the elected bargaining representatives. . . .The policy of industrial self-determination as expressed in Section 7 does not require fragmentation of the bargaining unit along racial or other lines in order to consist with the national labor policy against discrimination. And in the face of such fragmentation, whatever its effect on discriminatory practices, the bargaining process that the principle of exclusive representation is meant to lubricate could not endure unhampered. . . . Respondent objects that reliance on the remedies provided by Title VII is inadequate effectively to secure the rights conferred by Title VII. . . . Whatever its factual merit, this argument is prop- erly addressed to the Congress and not to this Court or the NLRB. In order to hold that employer conduct violates Section 8(a)(1) of the NLRA because it violates Section 704(a) of Title VII, we would have to override a host of consciously made decisions well within the exclusive competence of the Legislature. This obviously, we cannot do. Reversed. Case Questions 1. What were the complaints of the minority employees against the company? How did the union respond to their complaints? 2. Why did the employees reject using the procedures under the collective bargaining agreement? What hap- pened to them when they insisted on picketing the store to publicize their complaints? 3. Did the NLRB hold that their conduct was protected under Section 7? Why? Did the Supreme Court protect their conduct? Why?
Although the employer in J. I. Case and the employees in Emporium Capwell were held to have acted improperly, there is some room for individual discussions of working conditions and grievances. Where the collective agreement permits individual negotiation, an employer may discuss such matters with individual employees. Examples of such agree- ments are the collective agreements covering professional baseball and football players; the collective agreement sets minimum levels of conditions and compensation, while allowing the athletes to negotiate salary and other compensation on an individual basis. Procedural Requirements of the Duty to Bargain in Good Faith A union or employer seeking to bargain with the other party must notify that other party of its desire to bargain at least 60 days prior to the expiration of the existing collective agreement or, if no agreement is in effect, 60 days prior to the date it proposes the agree- ment to go into effect. Section 8(d) requires that such notice must be given at the proper time; failure to do so may make any strike by the union or lockout by the employer an unfair labor practice. Section 8(d) also requires that the parties must continue in effect any existing collective agreement for 60 days from the giving of the notice to bargain or until the agreement expires, whichever occurs later. Strikes or lockouts are prohibited during this 60-day “cooling-off” period. Employees who go on an economic strike during this period lose their status as “employees” and the protections of the act. Therefore, if the parties have given the notice to bargain later than 60 days prior to the expiration of the contract, they must wait the full 60 days to go on strike or lockout, even if the old agreement has already expired. When negotiations result in matters in dispute, the party seeking contract termina- tion must notify the Federal Mediation and Conciliation Service (FMCS) and the appro- priate state mediation agency within 30 days from giving the notice to bargain. Neither side may resort to a strike or lockout until 30 days after the FMCS and state agency have been notified. The NLRA provides for longer notice periods when the collective bargaining involves the employees of a health-care institution. In that case, the parties must give notice to bargain at least 90 days prior to the expiration of the agreement. No strike or lockout can take place for at least 90 days from the giving of the notice or the expiration of the agreement, whichever is later. Furthermore, the FMCS and state agency must be notified 60 days prior to the termination of the agreement. Finally, Section 8(g) requires that a labor organization seeking to picket or strike against a health-care institution must give both the employer and the FMCS written notice of its intention to strike or picket at least 10 days prior to taking such action. Why should a labor organization be required to give health-care institutions advance notice of any strike or picketing? As noted, Section 8(d) prohibits any strike or lockout during the notice period. Employees who go on strike during that period are deprived of the protection of the act. In Mastro Plastics Co. v. NLRB,2 the Supreme Court held that the prohibition applied only to economic strikes—strikes designed to pressure the employer to “terminate or modify” the collective agreement. Unfair labor practice strikes, which are called to protest the employer’s violation of the NLRA, are not covered by the Section 8(d) prohibition. Therefore, the employees in Mastro Plastics who went on strike during the 60-day cooling-off period to protest the illegal firing of an employee were not in violation of Section 8(d) and were not deprived of the protection of the act.
Concept Summary 15.1 The DuTy To Bargain in gooD FaiTh Procedural Requirements: Section 8(d) • The party seeking to begin negotiations must give notice of desire to bargain at least 60 days prior to the expiration of the collective agreement, or 60 days prior to the date the agreement will go into effect • Any existing agreement must be kept in effect for 60 days from giving notice, or until its expiry date (whichever occurs later) • Strikes and lockouts are prohibited during the 60-day notice period • If the negotiations result in a dispute, the party seeking contract termination must notify the FMCS and state mediation agency within 30 days from giving the notice to bargain; no strike or lockout can occur until after 30 days from giving notice to the FMCS and state agency Creation of the Duty to Bargain As has been discussed, the duty to bargain arises when the union gets the support of a majority of the employees in a bargaining unit. When a union is certified as the winner of a representation election, the employer is required by Section 8(a)(5) to bargain with it. (An employer with knowledge of a union’s majority support, independent of the union’s claim of such support, must also recognize and bargain with the union without resort to an election.) Because the NLRA does not provide a means of having a court review a certification decision by the NLRB, employers who seek to challenge a certification decision may refuse to bargain with the union, thereby forcing the union to file unfair labor practices under Section 8(a)(5). Because NLRB unfair labor practice decisions are subject to judicial review by the federal courts of appeals, the employer can then raise the issue of the union’s improper certification as a defense to the charge of refusing to bargain in good faith with the union. When an employer is approached by two unions, each claiming to represent a majority of the employees, how should the employer respond? One way would be to refuse to recog- nize either union (provided, of course, that the employer had no independent knowledge of either union’s majority support) and to insist on an election. Can the employer recognize voluntarily one of the two unions claiming to represent the employees? In Bruckner Nursing Home,3 the NLRB held that an employer may recognize a union that claims to have majority support of the employees in the bargaining unit even though another union is also engaged in an organizing campaign, as long as the second union has not filed a petition for a representation election. The Board reasoned that the rival union, unable to muster even the support of 30 percent of the employees necessary to file a petition, should not be permitted to prevent the recognition of the union with majority support. If, however, a valid petition for a representation election has been filed, then the employer must refrain from recognizing either union and must wait for the outcome of the election to determine if either union has majority support. The Bruckner Nursing Home decision dealt with a situation in which the employees were not previously represented by a union. When an incumbent union’s status has been challenged by a rival union that has petitioned for a representation election, is the employer still required to negotiate with the incumbent union? In RCA del Caribe,4 the Board held that: the mere filing of a representation petition by an outside, challenging union will no longer require or permit an employer to withdraw from bargaining or executing a contract with an incumbent union. Under this rule . . . an employer will violate Section 8(a)(5) by withdrawing from bargaining based solely on the fact that a petition has been filed by an outside union. . . . If the incumbent prevails in the election held, any contract executed with the incumbent will be valid and binding. If the challenging union prevails, however, any contract executed with the incumbent will be null and void. . . . The Bruckner Nursing Home and RCA del Caribe decisions were departures from prior Board decisions, which required that an employer stay neutral in the event of rival orga- nizing campaigns or when the incumbent union faced a petition filed by a challenging union. Which approach do you think is more likely to protect the desires of the individual employees? Do Bruckner Nursing Home and RCA del Caribe make it more difficult to unseat an incumbent union? A nonincumbent union that accepts recognition from an employer while its own peti- tion for a representation election is pending violates Section 8(b)(1)(A), and the employer granting such recognition is in violation of Section 8(a)(2).5 In NLRB v. Matros Automated Electrical Construction Corp.,6 an employer was held to violate Section 8(a)(2) where it recognized a union as bargaining agent for its employees while a rival union’s challenges to the results of a representation election were still pending, and the union accepting recogni- tion was held to violate Section 8(b)(1)(A). When craft employees who had previously been included in a larger bargaining unit vote to be represented by a craft union, and a smaller craft bargaining unit is severed from the larger one, what is the effect of the agreement covering the larger unit? In American Seating Co.,7 the NLRB held that the old agreement no longer applies to the newly severed bargaining unit, and the old agreement does not prevent the employer from negotiating with the craft union on behalf of the new bargaining unit. Is this decision surprising? (Recall the J. I. Case decision discussed earlier and reexamine the wording of Section 8(d) in its entirety.) Duration of the Duty to Bargain When the union is certified as bargaining representative after winning an election, the NLRB requires that the employer recognize and bargain with the union for at least a year from certification, regardless of any doubts the employer may have about the union’s continued majority support. This one-year period applies only when no collective agree- ment has been made. When an agreement exists, the employer must bargain with the union for the term of the agreement. Unfair labor practices committed by the employer, such as refusal to bargain in good faith, may have the effect of extending the one-year period, as the Board held in Mar-Jac Poultry.8 When a union acquires bargaining rights by voluntary recognition rather than certifi- cation, the employer is required to recognize and bargain with the union only for “a reason- able period of time” if no agreement is in effect. What constitutes a reasonable period of time depends on the circumstances in each case. If an agreement has been reached after the voluntary recognition, then the employer must bargain with the union for the duration of the agreement. After the one-year period or a reasonable period of time—whichever is appropriate— has expired, and no collective agreement is in effect, the employer may refuse to bargain with the union if the employer can establish that the union has lost the support of the majority of the bargaining unit, according to Levitz Furniture Co. of the Pacific.9 The employer’s evidence to support the fact that the union has lost majority support must have a reasonable basis in fact and, in the case of a certified union, must be based only on events that occur after the expiration of the one-year period from the certification of the union, as held in Chelsea Industries.10 In a successorship situation (see Chapter 17), the incumbent union is entitled to a rebuttable presumption of continuing majority support.11 In Allentown Mack Sales and Services, Inc. v. NLRB,12 the U.S. Supreme Court upheld the NLRB’s requirement that the employer have a “good faith reasonable doubt” about the union’s majority support in order to take a poll of employees about their support of the union. The Board held in NLRB v. Flex Plastics13 that filing a decertification petition alone does not suffice to establish a reason to doubt the union’s majority support. When the employer can establish some reasonable factual basis for its claim that the union has lost majority support, it may refuse to negotiate with the union. To find a violation of Section 8(a)(5), the Board must then prove that the union in fact represented a majority of the employees on the date the employer refused to bargain. What happens if the union employees go on strike and are permanently replaced by the employer? Must the employer continue to recognize and bargain with the union? In Pioneer Flour Mills,14 the NLRB …

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