The National Labor Relations Board is looking to make dramatic changes to employee handbooks. Here is the first paragraph in my latest article.
The National Labor Relations Board is actively looking to modify the legal standards that for the past five years have provided a commonsense solution for evaluating the legality of commonplace workplace misconduct rules. And if recent events are any indication, both unionized and non-unionized employers alike should be prepared for a new day in which your handbook rules will once again be unreasonably scrutinized – meaning your policies may need to be rewritten to ensure compliance with the new standards. What is happening at the Labor Board and what should you do to prepare for this inevitable swinging of the pendulum?
In a recent post on the Fisher Phillips blog, I and my colleagues examine this issue.
Here is the first paragraph:
The NLRB’s top prosecutor just issued a memo which seeks to bar employers from convening employee meetings on working time to address union representation unless they provide employees specific assurances that participation is completely voluntary. These so-called “captive audience” meetings are routinely conducted to educate employees – particularly in response to arguments advanced by organized labor outside the workplace – and have been a staple in the American workplace since Congress amended the labor laws to recognize employer free-speech rights almost 75 years ago. Although a handful of states have enacted statutes attempting to restrict such meetings, the April 7 memo from NLRB General Counsel Jennifer Abruzzo (formally known as GC Memo 22-04) represents an unprecedented development in the annals of modern labor law. What do employers need to know about this significant step – and what should they do about it?
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.
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.
Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.
