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[answered] Legally the collective bargaining process begins as soon as

Legally the collective bargaining process begins as soon as the union is certified as the exclusive representative of a group of workers by the NLRB. Collective bargaining is not just an activity that occurs in contractual discussions with employers but a continuous process throughout the life of the agreement and a daily task of the union. The ?duty to bargain? is a mutual obligation of both unions and employers where they must be predisposed to ?meet at reasonable times and confer in good faith? all of which is considered the terms and conditions of employment. This means that both the union and employer must interact with each other directly with the intent of coming to a solution to conflicts or disputes that may arise in the workplace.

??????????? There is, however, a big difference between negotiating in ?good faith? i.e. with the desire to come to an agreement and actions which will not lead to an understanding between the two parties. The duty to bargain is defined in Section 8(d) of the NLRA and enforced through the ULP sections? of the Act, 8(a)(5) and 8(b)(3) which point out that the refusal to bargain is, in itself, an unfair labor practice. The obligation to bargain, does not mean that the parties must come to an agreement or make concessions, the intent of the law is to assure that both sides sit down at the negotiating table and talk. Violations to the duty to bargain are defined as either?per se?or?bad faith. The first,?per se, occurs when one or both of the parties fails to adhere to the bargaining procedures stipulated in the Act;?bad faith?bargaining occurs when the actions of either of the parties is not conducive to bargaining, such as, acting in a perfunctory manner, stalling or refusing to meet in a reasonable time and place.

??????????? Likewise, the subjects that both parties are obligated to discuss are defined in the Act. By defining the subject matters of bargaining the NLRB detains the power to expand and constrain the bargaining power of workers and/ or employers. In general the scope of the issues that both parties are obligated to bargain are ?wages, hours and conditions of employment.? In this sense if the issue falls within the parameters above the NLRB can force the parties to negotiate, however, it is within this process that the power of either the union or employer can shift drastically.

There are three basic classifications that identify the issues of bargaining, they are:

  1. Mandatory?issues of bargaining, these are fundamentally issues that define wages, hours and terms and conditions of employment, such as shifts, overtime, productivity pay, etc.
  2. Permissible?subjects of bargaining are issues that are not mandatory but many times can and do appear in collective bargaining agreements, such as employer sponsored childcare. Both sides must agree to discuss a permissible subject for bargaining to occur.
  3. Illegal?subjects of bargaining are issues which are neither mandatory nor permissible and or in some way conflict the provisions of the NLRA or other state and federal labor regulations. For example, the parties cannot contractual negotiate the elimination of safety regulations provided under OSHA.
  4. To help identify the nature of the issues presented for bargaining, in the case of doubt, three basic questions must be answered:

a) Would the language or changes being proposed be legal? If the answer is negative than probably the issue is probably illegal.

b) Does the opposing party have the right to refuse to examine the issue? If so, than the issue can either be permissible or illegal.

c) If either party insists that a specific issue be included in the collective bargaining agreement and threatens a strike or lockout, is the work stoppage legal? Only (all other considerations apart) if it is a mandatory subject of bargaining.


Based on the assigned readings and your reading of the Act please answer the questions below in the weekly discussion forum. When using specific provision of the NLRA please cite the specific section number.

  1. Please explain the difference between mandatory, permissible and illegal subjects of bargaining, give examples.
  2. Please list at least six issues that are mandatory subjects of bargaining, explain why they are mandatory.
  3. Please list at least six issues that are permissible subjects of bargaining, explain why they are permissible.
  4. Please identify four illegal issues of bargaining? Why are they considered illegal.


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Sep 18, 2020





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