Union Contract Negotiations: What Law Applies?

Collective bargaining is a process through which unions and employers negotiate contracts to determine the terms of employment for union members. This includes mandatory subjects such as wages, hours, and working conditions, as well as permissive subjects like unit scope and internal union operations. While a union contract is being negotiated, the National Labor Relations Act gives employees the right to bargain collectively with their employer through a representative of their choosing. Both the union and the employer must bargain in good faith about the terms and conditions of employment until an agreement is reached or an impasse is declared. If a contract is already in place and a new one is being negotiated, almost all the terms of the expired contract continue to apply until a new contract is agreed upon.

Employers must bargain in good faith and sign any collective bargaining agreement reached

Employers have a legal duty to bargain in good faith with their employees' union representatives and to sign any collective bargaining agreement that has been reached. This duty includes many obligations, such as not making certain changes without bargaining with the union and not bypassing the union to deal directly with employees.

Good faith bargaining involves the union and the employer meeting and exchanging proposals for a collective agreement. They must make a sincere attempt to reach an agreement. Disagreeing with the other side's proposals or taking a firm stand in support of your own position is not bargaining in bad faith. However, adopting a deliberate strategy to prevent reaching an agreement could be considered a breach of the duty to bargain in good faith.

In deciding whether an employer has failed to bargain in good faith, a labour board will assess the employer's actions and intentions. The board will consider whether the employer's actions unreasonably hindered the process of reaching an agreement or had the predictable effect of destroying the bargaining process.

Some examples of actions that a labour board may consider include:

• Insisting that the other party meets certain demands over how, where, or when to meet, or other bargaining formats.
• Refusing to provide certain relevant information or refusing to bargain until that information is provided.
• Cancelling scheduled bargaining sessions at the last minute or without notice or reason.
• Failing to inform the union about business decisions that could impact negotiations, such as a decision to move or close a location.
• Communicating in a way that circumvents the designated bargaining agent.

Additionally, a labour board may consider the intentions of the employer, such as whether they are only going through the motions of bargaining without a genuine desire to conclude a collective agreement, or whether their motivation is to undermine the other party or avoid concluding an agreement.

It is important to note that certain actions or behaviours may not necessarily constitute a breach of the duty to bargain in good faith when viewed in isolation. For example, taking a hard bargaining approach, withdrawing or reducing earlier offers, or proposing a settlement during a strike or lockout.

Overall, employers have a legal obligation to bargain in good faith and sign any collective bargaining agreement reached with their employees' union representatives. This duty encompasses a range of obligations aimed at facilitating a sincere and productive negotiation process.

Employers cannot make unilateral changes to mandatory subjects of bargaining

The National Labor Relations Act gives employees the right to bargain collectively with their employer through a representative of their choosing. This means that employers have a legal duty to bargain in good faith with their employees' union representative and to sign any collective bargaining agreement that has been reached.

Under the National Labor Relations Act, an employer must bargain collectively with the representative of its employees over matters affecting "wages, hours, and other terms and conditions of employment." Employers cannot make unilateral changes to mandatory subjects of bargaining, even if they are not contained in a collective bargaining agreement. They must first give the union timely notice of the proposed changes and an opportunity to bargain about them.

Mandatory subjects of bargaining include wages, hours, working conditions, and other terms and conditions of employment. Employers cannot make changes to these subjects before negotiating with the union to reach an agreement or overall impasse, unless:

• The union prevents the parties from reaching an agreement or impasse.
• Economic exigencies compel prompt action.
• The proposed change concerns a discrete, recurring event scheduled to recur in the midst of bargaining (e.g., an annual merit-wage review), and the employer gives the union notice and the opportunity to bargain over that matter.

Unilateral changes to mandatory subjects of bargaining are only permitted when they are consistent with a long-standing practice and do not require significant discretion. For example, automatic wage increases based on non-discretionary standards and guidelines.

Employers who make unilateral changes to mandatory subjects of bargaining without following these guidelines may be found to have committed an unfair labor practice.

Unions and employers must bargain over mandatory subjects that directly impact terms and conditions of employment

The National Labor Relations Act requires unions and employers to bargain in good faith over mandatory subjects that directly impact terms and conditions of employment. This includes wages, hours, and other terms and conditions of employment, such as layoff procedures, production quotas, and work rules. Employers must give the union advance notice of any proposed changes in these areas and cannot refuse to bargain or take unilateral action without committing an unfair labor practice.

While neither side is required to make a particular concession, they must both approach negotiations with the intention of reaching an agreement. This means meeting at reasonable times and intervals, not bypassing the union to deal directly with employees, and not engaging in bad-faith, surface, or piecemeal bargaining.

Unions and employers are not required to bargain over every conceivable employment issue. However, if an issue is central to the employment relationship, such as those mentioned above, it is considered a mandatory subject of bargaining.

Additionally, there are permissive subjects of bargaining that unions and employers may choose to negotiate. These are topics that the parties may bargain about but are not required to include in the final agreement. Examples include the scope of the bargaining unit and work encompassed in the unit, pension benefits for retired persons, and matters relating to internal union procedures.

It is important to note that unions can waive their right to bargain over mandatory subjects during the term of a contract, but only if the waiver is clear and unmistakable. Similarly, an employer at a unionized workplace cannot unilaterally change a mandatory subject of bargaining without first giving the union timely notice and an opportunity to bargain.

Unions and employers cannot bargain over illegal subjects

Union contracts are negotiated between the union and the employer, with both parties having a legal duty to bargain in good faith. However, there are certain subjects that are considered illegal and cannot be bargained over.

The National Labor Relations Act (NLRA) prohibits employers from interfering with, restraining, or coercing employees in the exercise of their rights to organize and collectively bargain. This includes threatening employees with job or benefit loss, threatening to close the business, or promising benefits to discourage union support. Similarly, unions may not threaten employees with job loss for lack of support, seek punishment for employees who are not union members, refuse to process grievances, or fine employees who resign from the union.

According to Section 8(a)(5) of the Act, it is an unfair labor practice for an employer to refuse to bargain collectively with the union representatives. This includes making changes to wages, hours, or working conditions without negotiating with the union first. However, there are exceptions to this, such as when economic exigencies compel prompt action or when the union is preventing an agreement from being reached.

Other illegal subjects of bargaining include proposing to make the contract terminable at will or giving the employer the right to discharge employees for union activity. These proposals are considered unfair labor practices and are not permitted under the NLRA.

Both parties must bargain in good faith, and engaging in bad-faith or surface bargaining is prohibited. This means that both sides must actively participate in the deliberations with a sincere desire to reach an agreement and find common ground. Failing to meet at reasonable times and intervals or refusing to furnish relevant information are also considered violations of the duty to bargain in good faith.

Overall, while unions and employers have the right to negotiate contracts, there are certain subjects that are considered illegal and cannot be bargained over. These include threats, coercion, or retaliation against employees, as well as changes to wages and working conditions without prior negotiation. Both parties must also bargain in good faith and refrain from proposing illegal subjects that violate the NLRA.

Contracts are enforced through the grievance and arbitration process

A grievance procedure is included in most union contracts and outlines the steps to be taken when a dispute arises. The procedure aims to resolve conflicts at the lowest level possible, often beginning with discussions between the union and immediate management representatives, such as department chairs or supervisors. If the grievance is not resolved, it may be escalated to higher levels of management or the organisation's president or provost.

If the grievance remains unresolved, the final step in the process is arbitration. Arbitration involves the appointment of a neutral third-party arbitrator, often selected from a list provided by an agreed-upon agency or association, who reviews the case and makes a binding decision. Arbitration is designed to be a fair and non-partisan process that incentivises both parties to resolve disputes at earlier stages.

The grievance and arbitration process is an essential tool for enforcing contracts and resolving disputes between employees and employers. It provides a structured framework for negotiations and ensures that decisions are made in a legally recognised and impartial manner.

While arbitration is a crucial component of labour relations, it is not without its challenges. It can be expensive and time-consuming, and there is a risk that it may undermine union strength if not used judiciously. Therefore, it is essential to carefully consider the strengths and weaknesses of a case before deciding to arbitrate and to explore alternative dispute resolution methods whenever possible.

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