The Law of Collective Bargaining in Context
It is not possible to make anyone an expert in the law of collective bargaining in one hour. I think it is more useful to put the law in context and not treat it as an abstraction. I thought that I would try and follow the ordinary course of collective bargaining and discuss the problems that come up which have legal significance. This may be more useful than a theoretical introduction to the law.
Collective Bargaining – the Steps.
1. Ground Rules
Bargaining often starts with agreement on ground rules. These rules typically provide for the extension of the agreement subject to termination on notice, the maintenance of confidentiality with reference to the negotiations, the order of bargaining, i.e. non-economic issues first and economic issues last.
The ground rules can create problems depending on what happens. Publicity is an important weapon in the hands of a public employee union that cannot, except under the most extreme circumstances, strike. If negotiations break down, the union might want to take the matter public. Can it do so if it agreed to maintain confidentiality in the ground rules?
Ordinarily, a union wants to get rid of non-economic issues before economic issues in order to keep its membership united. Members may lose interest in language issues in the contract which actually may be more important than wage increases. In order to prevent the employer from stampeding the unit with a wage increase in order to short circuit non-economic issues, this order of bargaining can be important. But what happens when the employer makes non-economic proposals and the union wants to find out what the employer is willing to pay for the concessions in language? Can the union then demand to get an economic proposal in order to evaluate a non-economic proposal?
A. Go Public Not a Violation of the Duty to Bargain in Good Faith.
This issue was decided for the first time in Michigan on July 18, 2002 in case 15 MPER P 33051 (Grand Rapids Public Museum) The holding of the case was that the violation of ground rules, by itself, is not a refusal to bargain in good faith. The test of bad faith is whether, based on all the surrounding circumstances, the conduct evidenced an intention to not bargain in good faith. Ultimately the decision to go public will be lawful based on the union’s excuse for breaking the ground rules.
B. Breaking Ground Rules to Go to Economic Issues Before Non-Economic Not a Violation of the Duty to Bargain in Good Faith.
This issue was decide by the NLRB IN 1974 in a case handled by me. The NLRB held that a union, ground rules notwithstanding, had a right to insist on knowing what the economic quid pro quo would be for agreeing to non-economic issues. The employer violated the Act when it refused to acquiesce in the union’s demand. 214 NLRB 1103 (Adrian Daily Telegram)
2. Bargaining the Contract.
A. “Boulwarism”, An NLRA concept.
The Employer brings in a proposal, advises the union that he studied the matter carefully and this proposal is fair, competitive and financially doable. Therefore, he will entertain questions about the proposal but will not agree to change any of its terms.
It is interesting that this term is not common in NLRB decisions and does not exist, to my knowledge, in MERC decisions. The language of the NLRB is instructive about the bargaining obligation under the National Labor Relations Act. It appears in 301 NLRB, 835 (American Meatpacking Corporation)
An employer violates Section 8(a)(5) where it enters into bargaining negotiations with a desire not to reach an agreement with the union, or has taken unilateral action with respect to a term or condition of employment… But, having refrained from any of the foregoing conduct, and employer may still have failed to discharge its statutory obligation to bargain in good faith. As the Supreme Court has said:
The Board is authorized to order the cessation of behavior which is in effect a refusal to negotiate, or which directly obstructs or inhibits the actual process of discussion, or which reflects a cast of mind against reaching agreement.
Thus, a party who enters into bargaining negotiations with a “take-it-or-leave-it” attitude violates its duty to bargain although it goes through the forms of bargaining, does not insist on any illegal or nonmandatory bargaining proposals, and wants to sign an agreement. For good-faith bargaining means more than going through the motions of negotiation.” “The essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground. In the present case, the Respondent manifested no real intent to adjust differences, but essentially adopted the “take-it-or-leave-it” approach condemned in General Electric.
This bargaining tactic is not, by itself, a refusal to bargain in good faith. That determination comes only as a result of evaluating all of the surrounding facts and circumstances of the bargaining.
B. Take it or Leave It under PERA.
The term “Boulwarism” is rarely found in NLRB decisions and not at all in decisions of MERC. The term implies going to impasse based upon a rigid employer bargaining proposal. Under PERA the duty to bargain in good faith is the same as under the NLRA but the application of the principle is different due to the difference in the laws. In public employment there is no right to strike but there is a right to non-binding arbitration or fact finding.
1. Unilateral implementation.
The employer may unilaterally implement where the parties have gone to impasse. So, if the employer gives the union a “take-it-or-leave-it” proposal and the parties go to impasse the employer can implement that proposal.
Impasse occurs when “the positions of the parties have solidified and further bargaining would be futile.” (2001 MERC Lab Op 28, 32 (Mecosta County Park Commission).
The declaration of one party that there is an impasse does not mean an impasse, as a legal matter, has occurred. An impasse only occurs when neither party is willing to compromise.
3. Preventing impasse.
A. Fact Finding
Under PERA an impasse is prevented when a request for Fact Finding is made with the Commission. The employer may not unilaterally impose its last and best offer until fact finding is complete and the parties have had an opportunity to bargain over the report of the fact finder for a period of 60 days.
B. Information Requests
An employer is required to furnish, on demand, factual information concerning issues in bargaining or in a grievance proceeding. The duty to supply this information is part of the duty to bargain in good faith. The union, acting in good faith, may forestall impasse by making information requests to better understand the employer’s final position. The information provides may lead to proposals by the union that will start bargaining and forestall impasse.
1. The employer tells the union it has to pay for the information.
Ordinarily the employer is required to make the information available to the union so that the union can copy the information at its own expense. The employer may even be required to compile data for the union as part of its duty. Where the employer has to undergo particular expense in the preparation of data, that may be a subject for bargaining. The union, if it requires the employer to furnish the information, may be charged for it. But the amount of the charge must be reasonable, explained and be itself subject to negotiations.
C. The employer skips meetings, will only meet for a short period of time, spends time in the negotiations on dues check off, arbitration and the grievance procedure but is reluctant to talk about other issues like wages and working conditions. The employer reduces the economic offer at each session of bargaining saying the longer it takes to get an agreement the less money there will be.
1. Surface Bargaining
Where an employer seeks to retain total control over working conditions while at the same time refusing to agree to an agency shop, without a reasonable explanation, does not respond to union requests in a timely manner, will not recognize seniority, declaring an impasse after only one meeting after the fact finder’s report, seeks to limit access to the grievance procedure the conduct may be considered surface bargaining. (Oakland Community College, 15 MPER P 33006)
The parties to negotiations have a duty to meet at reasonable times over wages, hours and working conditions with the intent to arrive at a written agreement but neither party can be compelled to agree to anything specific. “To determine whether a party has bargaining in good faith, we examine the totality of the circumstances to decide whether a party has approached the bargaining process with an open mind and a sincere desire to reach an agreement.” (Op cit).
2. Regressive Bargaining
An employer may reduce a proposal or modify a proposal adversely to the union without being involved in regressive bargaining. A change in economic conditions, a response to a union proposal all may provide justification.
“While the making of a proposal in contract negotiations which offers less than the party’s previous proposal is not per se bad faith, successively less generous offers, when made without reasonable justification and without any significant compensatory proposals, may indicate an intention not to reach an agreement.” (City of Springfield, 13 MPER P 31002)
D. The employer calls a meeting of the bargaining unit and tells them that the union has not acted in good faith. It explains its proposal and tells the unit that they should demand a vote so that the proposal can be adopted.
1. Direct Dealing
An employer is permitted to communicate with the employees about negotiations. The sharing of information without coercion and attacks on the bargaining committee are permissible. The issue is: Is the employer dealing with the union through the employees or with the employees through the union? There is illegal direct dealing when this conduct undermines the duty to bargain directly with the union. 18 MPER P 22 (Jackson County)
E. The employer wants to change the composition of the bargaining unit and offers a substantial increase in money if the union agrees.
1. Bargaining Over Composition of Bargaining Unit
Bargaining over the composition of the bargaining unit is a permissive subject of bargaining. Either side may make proposals that are permissive and not mandatory. But, either side may refuse to bargain over permissive subjects and the opposite party cannot then go to impasse. Where a permissive subject (composition of the bargaining unit) is combined with an increase in wages (mandatory) upon refusal to adopt the permissive issue the employer can withdraw the mandatory issue without being involved in regressive bargaining. 1 MPER P 19032 (Cheboygan Area Schools)
Broadly speaking there are three categories of bargaining subjects: mandatory, permissive and prohibited. The first two can be the subject of bargaining although the permissive subject is up to the parties. It cannot be forced. An example of a prohibited subject would be a “union” shop agreement that did not provide an option for agency fee payers.
F. The employer wants a court reporter to transcribe the bargaining sessions and the union is opposed.
1. This is a permissive subject of bargaining. While it is extremely important to take good notes of bargaining, the use of a court reporter can be intimidate and interfere with the free flow of discussion so necessary in negotiations. Upon the objection of the union, the employer may not use a court reporter.
Bargaining notes are important because when an arbitrator is called upon to interpret a provision of a collective bargaining agreement, the conversation at the bargaining table may bear on the intention of the parties.