§11.10 Union Bad-faith Bargaining

LibraryLabor and Employment Law: Private Sector (OSBar) (2011 Ed.)
§11.10 UNION BAD-FAITH BARGAINING

§11.10-1 In General

Cases involving a union's refusal to bargain tend to be much less frequent than cases involving an employer's refusal to bargain, probably because of the relative positions of the parties. The union is usually not the party in any position to implement unilateral changes in employment conditions. Nevertheless, unions have a statutory obligation to negotiate in good faith on mandatory subjects of bargaining that corresponds in many respects to the employer's duty to bargain. It is an unfair labor practice for a union that is the employees' representative to refuse to bargain with the employer. 29 USC §158(b)(3) (NLRA §8(b)(3)).

For example, a union may violate the National Labor Relations Act by threatening violence against an employer because of the employer's positions or actions during contract negotiations, International Bhd. of Teamsters, Local No. 507, 306 NLRB 118 (1992), aff'd, 20 F3d 1017 (9th Cir 1994), or by stalling negotiations to pursue a consumer boycott against a company, Teamsters Local Union No. 122, 334 NLRB 1190 (2001), or by unreasonably delaying a ratification vote on a tentative agreement, Teamsters Local 287 (Granite Rock), 347 NLRB 339 (2006).

Examples of particular subjects or circumstances that may give rise to a finding of bad-faith bargaining are discussed in §§11.10-2(a) to 11.10-2(i).

§11.10-2 Particular Cases

§11.10-2(a) Nonmandatory Subjects

Neither party may insist to impasse in negotiations about an issue that is not a mandatory subject of bargaining. See §11.9-2. Thus, a union violates the National Labor Relations Act, 29 USC §158(b)(3) (NLRA §8(b)(3)), by insisting to impasse on bargaining for a unit broader than the unit for which the union is recognized, Louisiana Dock Co. v. NLRB, 909 F2d 281 (7th Cir 1990); Local No. 3, International Brotherhood of Electrical Workers, 252 NLRB 539, 541-542 (1980); insisting on an interest arbitration clause, Sheet Metal Workers' International Asso., Local 263, 272 NLRB 43, 45-46 (1984) (see §11.9-2); or insisting that the employer furnish a performance bond, see Rabouin v. NLRB, 195 F2d 906 (2d Cir 1952).

A union also violates its statutory bargaining duty by insisting on illegal subjects such as a hot-cargo clause, Retail Clerks International Asso. v. NLRB, 390 F2d 858 (DC Cir 1968) (the union sought to include a clause requiring that demonstrators employed by a vendor to pass out food samples in retail stores be covered by the terms of a retail clerks' contract), or a closed-shop provision, Bricklayers (Selby-Battersby & Co.), 125 NLRB 1179 (1959) (the union sought to include a provision permitting the employees covered by the labor agreement to refuse to work on a job on which nonunion workers were also employed). See §§11.8-3(a), 11.9-4.

Although wages, hours, and working conditions of the contractual bargaining unit are mandatory subjects of bargaining, changes in the scope of the unit are only permissive subjects of bargaining. See §11.9-3. Therefore, a union or an employer engages in bad-faith bargaining when it insists as a precondition to negotiations that the other party agree to a change in the scope of an existing bargaining unit. Federal-Mogul Corp., Bower Roller Bearing Div., 209 NLRB 343 (1974); Chicago Truck Drivers, etc., 279 NLRB 904 (1986). In fact, pursuing a...

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