§11.3 When the Duty to Negotiate in Good Faith Exists

• Library: Labor and Employment Law: Private Sector (OSBar) (2011 Ed.)

§11.3 WHEN THE DUTY TO NEGOTIATE IN GOOD FAITH EXISTS

§11.3-1 In General

An employer's obligation to negotiate in good faith with the union representing its employees arises when the union becomes the authorized collective bargaining representative of the majority of the employees in a particular bargaining unit. The union can obtain this status in three ways:

(1) Through an official election among bargaining unit employees, certified by the National Labor Relations Board (NLRB), see 29 USC §159 (NLRA §9);

(2) Through voluntary recognition of the union by the employer, usually based on an authorization card check to determine if a majority of the employees in the proposed bargaining unit have authorized the union to represent them, see 29 USC §§158(a)(5), 159(a) (NLRA §§8(a)(5), 9(a)); or

(3) Pursuant to an NLRB remedial order against an employer who has committed serious and pervasive unfair labor practices that have undermined the union's majority status or have prevented a fair election. NLRB v. Gissel Packing Co., 395 US 575, 595-597, 610, 89 S Ct 1918, 23 L Ed2d 547 (1969).

The third remedy above is imposed only when it is demonstrated that the union at one point had the support of a majority of employees in the union. Gourmet Foods, Inc., 270 NLRB 578 (1984).

The employer's duty to bargain in good faith exists with respect to negotiations over an initial labor contract or a new labor agreement and over changes during the term of a labor contract in wages, hours, and working conditions that are mandatory subjects of bargaining. This employer duty to bargain is conditioned on the union's request for bargaining, the union's continuing status as representative of a majority of the employees, and the union's not engaging in illegal activity or waiving the union's right to bargain. These concepts are discussed in more detail in §§11.3-2 to 11.3-4(d).

§11.3-2 Reopening a Labor Agreement for Negotiations

A party to a labor agreement who wishes to terminate or modify the agreement must give written notice to the other party of its proposed termination or modification at least 60 days before the agreement's expiration date or, if the contract has no expiration date, 60 days before the time it is proposed to make such termination or modification. 29 USC §158(d)(1) (NLRA §8(d)(1)). Within 30 days after giving such notice, the party must also notify the Federal Mediation and Conciliation Service and any state mediation agency of the existence of a dispute. 29 USC §158(d)(3) (NLRA §8(d)(3)).

A strike, lockout, or any change in the working conditions established by the existing labor contract is forbidden during the 60-day notice period or the unexpired contract term, whichever is longer. 29 USC §158(d)(4) (NLRA §8(d)(4)). These notice requirements are different for health care institutions. See 29 USC §158(g) (NLRA §8(g)).

Many labor agreements provide that they will automatically renew, usually for a one-year period, if no effective reopening occurs. Good-faith renegotiation of a contract that has automatically renewed is not required. See NLRB v. Vapor Recovery Systems Co., 311 F2d 782 (9th Cir 1962).

The parties may also include a "reopener provision in their contract, by which they agree to open up specified subjects for bargaining before the expiration date of the contract." Speedrack, Inc., 293 NLRB 1054, 1054 (1989). Reopener negotiations that occur in the middle of the contract term on specific identified subjects (usually economic) have substantially the same legal status as contract-renewal negotiations after contract expiration. Speedrack, Inc., 293 NLRB at 1056-1057; HydroLogics, Inc., 293 NLRB 1060 (1989).

When a labor contract provides for reopening and consequent negotiation on specific subjects only, the remainder of the labor contract is automatically renewed. NKS Distribs., 304 NLRB 338 (1991).

A strike that occurs when the union fails to properly reopen a contract for negotiation may be unprotected under the National Labor Relations Act, and the strikers may lawfully be fired, despite the union's claim that notice of a dispute was not sent because of a mere clerical error. Boghosian Raisin Packing Co., 342 NLRB 383 (2004).

§11.3-3 Suspension or Termination of Employer's Duty to Bargain

§11.3-3(a) Union's Loss of Majority Status

It is unlawful for an employer to recognize and negotiate with a union that represents only a minority of employees in a bargaining unit. Dura Art Stone, Inc., 346 NLRB 149 (2005). See 29 USC §158 (NLRA §8).

For one year after the National Labor Relations Board (NLRB) certifies a union as the collective bargaining representative of a majority of employees, it is presumed that the union continues to represent a majority of the employees. See 29 USC §159(c)(3) (NLRA §9(c)(3)). The employer may not lawfully refuse to bargain during that one-year period except in unusual circumstances, such as the union's dissolution. Brooks v. NLRB, 348 US 96, 103-104, 75 S Ct 176, 99 L Ed 125 (1954).

A union that obtains bargaining rights through voluntary recognition rather than through NLRB certification is presumed to continue as the representative of the employees for a reasonable time. Rockwell International Corp., 220 NLRB 1262, 1263 (1975).

An employer may not contest the union's majority status or refuse to bargain in good faith during the term of a valid collective bargaining agreement. Shamrock Dairy, Inc., 124 NLRB 494 (1959), enforced, 280 F2d 665 (DC Cir 1960).

After one year (for a certified union), or after a reasonable time (for an uncertified but recognized union), or after a labor contract expires, the union's presumed majority status is rebuttable. The employer may withdraw recognition from the union and refuse to bargain with the union in some circumstances. An employer who unlawfully refused to bargain a new contract and unlawfully withdrew union recognition may be compelled to bargain for at least six to 12 months (depending on the facts) before again contesting the union's majority status. Lee Lumber & Bldg. Material Corp., 334 NLRB 399 (2001).

The Ninth Circuit has held that an employer's good-faith doubt of continued union representation of a majority of unit employees must be based on objective evidence, not mere subjective belief, and that the evidence must clearly demonstrate lack of majority employee support. Premium Foods, Inc. v. NLRB, 709 F2d 623, 630-631 (9th Cir 1983). Proof of union loss of majority status, not just employer good-faith doubt of such loss, is required to withdraw recognition. Levitz Furniture Co. of the Pac., Inc., 333 NLRB 717 (2001). An employee petition signed by 180 of 276 unit employees stating that the signers no longer wanted the union to represent them was sufficient objective evidence of loss of majority status to support the employer's decision to withdraw recognition of, and to cease bargaining with, the union. Hotel, Motel & Restaurant Employees & Bartenders Union Local No. 19 v. NLRB, 785 F2d 796, 800 (9th Cir 1986).

However, objective evidence of loss of majority support will not justify an employer's withdrawal of union recognition when the employer induced the loss of support by committing unfair labor practices, such as soliciting employees to sign a petition to remove the union, Ft. Wayne Newspapers, Inc., 247 NLRB 548, 550 (1980), or conducting an employee poll that does not conform to the standards set by the NLRB in Struksnes Constr. Co., 165 NLRB 1062 (1967), and Hohn Industries, Inc., 283 NLRB 71, 77 (1987).

A union's status as the representative of a majority of...