Skip to content

Category: NLRB

Negotiating a Collective Bargaining Agreement

Published by Brett Holubeck on February 14, 2020
Two people shaking hands to demonstrate that a collective bargaining agreement has been formed.
Photo by Cytonn Photography on Unsplash

In a past post, I discussed how to respond to union organizing. But what happens if the employees have an election and  a union is voted in or if the company has had a collective bargaining agreement for years. What do employers need to know when negotiating an agreement?

As a reminder, a collective bargaining agreement is an agreement between an employer and the union that represents a group of the employer’s employees. It contains the provisions that the parties agree will govern the workplace. The National Labor Relations Act requires the company and the union “to meet at reasonable times and confer in good faith” to try to negotiate a collective bargaining agreement. Employers and the union are required to bargain about the “rates of pay, wages, hours of employment, and other conditions of employment” under the Act. However, neither party is compelled by law to agree to any specific proposal.

Bargaining in Good Faith

Good faith bargaining is only understood in the context of bad faith bargaining. Bad faith bargaining, sometimes called surface bargaining, is not the same thing as an employer lawfully adopting a position at the bargaining table and trying to stick to it. The NLRB considers the underlying reasons for company made proposals and a willingness to compromises when it considers whether the company made a good faith attempt to bargain.

For example, consider a case where the union proposed a wage of $30 an hour for a certain type of job and the company proposes a wage of $20 an hour. The company can demonstrate bargaining in good faith if it can show that the market rate for the position is $20, it pays employees in nonunionized facilities in the same position the same wage, and it has had no trouble finding employees at this wage rate. The employer here is likely bargaining in good faith.

However, consider the opposite scenario. The union proposes a $20 wage for a certain type of employee in a unionized facility, the same type of employees in the employer’s other nonunionized facilities receive the same wage of $20 per hour, and $20 is the market rate for the type of employee. However, the company refuses to budge in its offer of paying $10 an hour. This is likely bad faith bargaining as there is no legitimate business reason for the company to take this position, and it seems to prevent the formation of a contract.

The National Labor Relations Board recently confirmed this in its Phillips 66 decision (369 NLRB No. 13). In that decision the Board held that examining whether a company is bargaining in good faith requires an evaluation of the totality of a company’s conduct. The Board reiterated that bargaining in good faith “does not compel either party to agree to a proposal or require the making of a concession.” The Board further stated that “even ‘adamant’ insistence on a bargaining position ‘is not of itself a refusal to bargain in good faith.”’

There are also differences in good faith bargaining in initial agreements (first collective bargaining agreements) and collective bargaining agreement’s for established units. It is difficult to make a substantial change, especially when you are taking away benefits from employees, in a contract renewal. A proposal to take away a previously given benefit to employees can result in a charge that the employer is bargaining in bad faith. Considering what proposals to make and what proposals to accept in an initial collective bargaining agreement is thus even more important than what happens in subsequent agreements. The initial agreement sets the framework for any subsequent agreements.

What Employers Can Do in Negotiations

The NLRB lists what employers can and cannot do in collective bargaining:

For example, employers can:

Bargain with the union concerning permissive subjects of bargaining, but not to impasse.

Lock out your employees where your sole purpose in doing so is to bring economic pressure to bear in support of a legitimate bargaining position.

Make changes in the scope and direction of your enterprise – matters that lie at the core of your entrepreneurial control of your business – without bargaining about the change. You must, however, bargain with the union concerning the effects of the change on unit employees. (Whether a particular change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)

What Employers Cannot do In Negotiations

Here is a short list of some of things that employers cannot do, although the NLRB lists more items:

Bypass the union and deal directly with employees. (However, you may communicate to your employees accurate information about your bargaining proposals.)

Insist to impasse on a proposal concerning an illegal subject of bargaining, or include an illegal clause in a labor contract. Illegal subjects include, for example, a proposal to make the contract terminable at will or to give the employer the right to discharge employees for union activity.

Refuse to bargain over the effects of a change in the scope and direction of your enterprise, even though you need not bargain over the change itself because it concerns a matter at the core of your entrepreneurial control of your business. (Whether a proposed change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)

Engage in bad-faith, surface, or piecemeal bargaining.

Remember, when a union represents a group of employees an employer cannot make unilateral changes to any area affecting employees when the subject is covered as a mandatory subject of bargaining unless the company and the union have reached an impasse or the union has waived the right to bargain.

Conclusion

Employers that negotiate collective bargaining agreements must walk a fine line to ensure that they advocate for their position but do not violate the law. Companies, and the counsel that represents them, can benefit from examining collective bargaining agreements for similar groups of employees and agreements that the local or international of the particular union representing the employee has put forth. You can view some of these agreements through Berkley’s labor contracts database and through this source on the Department of Labor website. At the bargaining table, employers should generally start with a position that they can make changes to and allows flexibility to make concessions to ensure that they bargain in good faith. It is often best to use outside counsel or at least someone that does not have the authority to make the final call on whether to accept a proposal because the negotiator can tell the union that they need to reach out to upper management to confirm whether a proposal is acceptable, which gives the employer the chance to better determine any financial effects of a proposal and to develop a counter proposal.

Collective bargaining is not easy. Companies that are not careful will have unfair labor practices filed against them. To avoid this, it is important that company negotiators or outside counsel are well prepared before any bargaining begins.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.                                                                                                                                                                                    

Responding to an NLRB Unfair Labor Practice Charge

Published by Brett Holubeck on January 10, 2019
Image of gavel to represent that the unfair labor practice is essentially a case against the company alleging that it violated the NLRA.

Photo by rawpixel on Unsplash

Getting an unfair labor practice charge against you can be confusing. Let’s start with the basics.

An unfair labor practice charge is filed by an employee or a union with the National Labor Relations Board alleging that an employer or a union violated the National Labor Relations Act. The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (otherwise known as protected concerted activity). It is illegal for a company to discipline or fire someone because they engage in protected concerted activity. 

Some of the most common violations that employers commit are:

  1. Forbidding employees to discuss their salaries
  2. Firing or disciplining employees that discuss the union or solicit employees to sign union authorization cards
  3. Disciplining or firing employees that complain about working conditions, pay, or safety issues with or on behalf of a group of employees.

You can read more about other ways that the NLRA protects employees in one of my earlier posts.

The Best Approach is to Avoid Unfair Labor Practices

If you do not violate the law, then it is less likely, although not impossible, that an employee or a union will file an unfair labor practice charge. Employees can and do file frivolous lawsuits and unfair labor practice charges.

The best way to avoid an unfair labor practice charge is to train your managers, supervisors, and HR staff on what they can and cannot do. The easiest way to remember what can and cannot be done is to remember TIPS.

  • Threaten
  • Interrogate
  • Promise
  • Spy

Employers cannot threaten employees with any adverse action (discipline, termination, reducing pay) because they support a union or engage in protected activity. Companies cannot interrogate employees on whether they support a union. Employers cannot promise employees benefits or better pay to encourage employees to stop supporting a union. Finally, employers cannot spy on employees that are engaging in union or protected activity (like having a meeting offsite about whether employees should join a union).

So, what happens when you have an unfair labor practice filed against you?

The NLRB has a chart that shows exactly what happens. Let’s review the steps before a hearing occurs.

The Investigation

Companies need to act fast when they receive an unfair labor practice charge from the NLRB. Obviously, employers should seek legal counsel if they are not represented.  To respond companies should:

  • Carefully read the unfair labor practice charge
    • Who was involved in the incident(s)?
    • When did they occur?
    • What violation does the charge allege that the company committed?
  • The employer will also receive a Questionnaire on Commerce Information. It is best to agree or stipulate that the company is subject to the jurisdiction of the NLRB rather than filling out the form. Employers typically do not want to reveal more information than they need to.
  • Employers need to be careful about speaking to employees that were witnesses to the events leading to the unfair labor practice charge.

Matt Austin explains the basics of what employers need to do to speak to employees in these situations:

Specifically, Johnnie’s Poultry allows questioning of employees only after the employer’s representatives:
1. communicate to the employee the purpose of the questioning;
2. assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and
3. obtain the employee’s participation in the interview on a voluntary basis.

Basically, employers need to let the employee know that they are interviewing the employee because of the incident within the unfair labor practice charges. Employers must inform the employee that they will get no benefit or punishment from speaking with the employer or the employer’s attorney. Finally, the interview is voluntary and can be stopped at any time. Employers should never speak with the charging party (the person that made the accusations) about the incident. None of this applies to members of management or human resources.

The NLRB will typically wish to speak with the members of the management team that are alleged to have committed the offenses committed by the company. Most employers benefit from conducting their own careful investigation of the events before they allow the NLRB to interview their employees.

The NLRB will Want to Take Affidavits from Management Witnesses

As part of the investigation, the NLRB will seek to take affidavits or statements from management witnesses. Companies have a right to have an attorney present for all witnesses that are members of management or human resources staff (agents of the company) but attorneys cannot be present for any affidavits taken from employees that are not members of management. Employers cannot stop employees that are not members of management from speaking with the NLRB.

Employers have a few options when it comes to determining whether to provide management witnesses. They can:

  • Refuse to provide any information to the investigator. This will usually result in a complaint being issued against the company because the only evidence will be from the charging party. Employers may wish to do this if they believe that this will go to a hearing because the NLRB will ultimately issue a complaint. Companies also need to be aware that the NLRB will often share information with the charging party. The NLRB rarely seeks an investigative subpoena to force the employer to provide information, so it is likely that you will be facing a complaint that will include all of the allegations from the charge.
  • Call the investigator and orally discuss the company’s position but refuse to make management witnesses available for affidavits or to provide any documents.
  • Provide the management witnesses for affidavits and have an attorney present to assist witnesses. If an employer plans to do this, then it should also file a statement of position explaining its defenses before the affidavits are taken.

Some Tips If You Provide Management Witnesses for Affidavits

The affidavits are incredibly important to help the NLRB determine what happened. If something is said incorrectly in an affidavit, then the opposing party will use that against a company should the case go to a hearing. The NLRB or the union (if they are the charging party) will impeach company witnesses with incorrect statements. It looks a bit like this scene from My Cousin Vinny, but with documents. No company wants this to happen to its witnesses, which is why preparation for an investigation is crucial.

Each witness and any attorneys present can review the affidavit that the NLRB takes. The NLRB takes affidavits using a computer, so errors that a witness or their attorney find should be redone to make a clean copy of the affidavit. Be sure to ask the investigator to do this.

Witnesses must be careful that the NLRB agent does not pin a witness down with statements like “I spoke with no other individuals about the incident.” A witness may remember more information later, so be careful of statements that lock a witness into a position unless the witness is absolutely sure that they will not remember more information later.

If the investigator does not ask a question or get information that a witness believes is necessary for the investigation, then they should speak up and get the information into the affidavit. The affidavit is your chance to provide any information that will be helpful to the employer’s case.

The NLRB’s Conclusion of the Unfair Labor Practice Investigation

Once the affidavits are completed, the employer should consider providing an additional statement of position concerning the facts of the case. This will be the last chance to state its position and defense before the NLRB reaches its conclusion on the unfair labor practice charge.

Once the NLRB makes a determination, then it will either dismiss all of the allegations (i.e. the employer/defense wins) or the charging party will withdraw the charge, dismiss some of the allegations, or dismiss none of the allegations. If the NLRB dismisses all of the allegations, then there is nothing left for the employer to do. If the NLRB dismisses some but not all of the allegations or none of the allegations, then it will be time to consider settlement. Each case is unique, so the best option is a fact specific determination that will need to be carefully discussed.

Conclusion

Responding to an unfair labor practice charge from the NLRB is difficult, but there are a number of things that employers can do to respond. Employers must investigate allegations of unfair labor practices carefully before they decide the proper approach for their company.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.