§11.9 Subjects of Negotiation

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

§11.9 SUBJECTS OF NEGOTIATION

§11.9-1 In General

Subjects of negotiation can be classified as mandatory, permissive, or illegal. The parties have an obligation to bargain in good faith over mandatory subjects of bargaining, NLRB v. Wooster Div. of Borg-Warner Corp., 356 US 342, 78 S Ct 718, 2 L Ed2d 823 (1958), but the obligation does not require either party to agree to a proposal or to make a concession regarding a mandatory subject. 29 USC §158(d) (NLRA §8(d)). That is, mandatory subjects are items on which the parties must bargain and on which they may insist to the point of impasse. See §11.9-2.

The parties may negotiate permissive subjects of bargaining if they choose to do so, but neither party is obligated to bargain about a permissive subject and neither party may negotiate to impasse on a permissive subject. See §11.9-3.

Illegal subjects may not be included in a labor contract and neither party has any obligation to discuss them. See §11.9-4.

It is lawful for a company to include a permissive subject in a package proposal with mandatory subjects and to bargain to impasse about the package offer. Community Television, 312 NLRB 15 (1993).

§11.9-2 Mandatory Subjects

Mandatory subjects of collective bargaining are generally those that directly affect the "wages, hours, and other terms and conditions of employment" of bargaining-unit employees. 29 USC §158(d) (NLRA §8(d)). Mandatory subjects of bargaining include the following:

(1) Drug, alcohol, or physical testing of existing employees, Johnson-Bateman Co., 295 NLRB 180, 182 (1989);

(2) Established grievance and arbitration procedures, United Electrical, etc. v. NLRB, 409 F2d 150, 156 (DC Cir 1969) (citing NLRB v. United Nuclear Corp., 381 F2d 972, 977 (10th Cir 1967));

(3) No-strike clauses in labor contracts that deprive employees of their right to strike, United Electrical, etc., 409 F2d at 156 (citing Allis-Chalmers Mfg. Co. v. NLRB, 213 F2d 374, 378 (7th Cir 1954)); but see Teamsters Local Union No. 515 v. NLRB, 906 F2d 719, 721 (DC Cir 1990) (the National Labor Relations Act "does not forbid bargaining parties from negotiating over or agreeing to waivers of the right to strike in protest against unfair labor practices");

(4) The effects of business changes on unit employees, even if arguably minimal, AG Commun. Sys. Corp., 350 NLRB 168, 172-173 (2007);

(5) Health insurance, Connecticut Light & Power Co. v. NLRB, 476 F2d 1079, 1081 (2d Cir 1973);

(6) Holiday pay and vacation benefits, NLRB v. Century Cement Mfg. Co., 208 F2d 84 (2d Cir 1953);

(7) Incentive pay plans, NLRB v. Hondo Drilling Co., N.S.L., 525 F2d 864 (5th Cir 1976); Pavillions at Forrestal and Princeton Healthcare, LLC, 353 NLRB 540 (2008), abrogated, 130 S Ct 2635 (2010), aff'd, 2010 NLRB LEXIS 427, 356 NLRB No. 6 (Oct. 22, 2010), or discretionary wage-increase plans based on merit, Colorado-Ute Electric Ass'n v. NLRB, 939 F2d 1392 (10th Cir 1991);

(8) Layoffs that are economically motivated and that are not the result of compelling economic circumstances justifying unilateral action, Lapeer Foundry & Mach., 289 NLRB 952, 953-955 (1988);

(9) Changes in working conditions for strikers returning to work, Marbro Co., 284 NLRB 1303 (1987); see NLRB v. Curtin Matheson Scientific, Inc., 494 US 775, 110 S Ct 1542, 108 L Ed2d 801 (1990);

(10) Major changes in the operating practices or structure of the business, such as selling or relocating the business, or subcontracting in some situations, see, e.g., §§11.5-2(a) to 11.5-2(b), 11.7-1 to...