B. Collective Bargaining

• Jurisdiction: New York

B. Collective Bargaining

The duty to negotiate commences upon the certification or recognition of a union as the collective bargaining representative of a group of employees. The function of the representation process is to facilitate collective bargaining, because public policy encourages such negotiations.³²⁴

1. Exclusivity

The representatives who are designated or selected for the purposes of collective bargaining are the exclusive representatives of the employees in the bargaining unit.³²⁵ An obvious consequence of "exclusivity" is that the employer may not negotiate with any organization other than the exclusive representative with respect to terms and conditions of employment. Another consequence is that the employer may not negotiate with the employees individually.³²⁶ A third consequence is that the union is obligated to represent the entire unit at negotiations including unit employees who chose not to become union members.

2. Nature of the Duty to Bargain

The nature of the duty to bargain is set forth in § 8(d) of the NLRA as follows:

For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.

PRACTICE GUIDE

Granting benefits to employees that have not been negotiated with the union violates the duty of bargaining in good faith.

3. Good Faith

a. Nature of Demands

Negotiation demands fall into three categories: (1) mandatory, those demands that must be negotiated; (2) permissive, those demands that may be negotiated; and (3) prohibited, those demands that if included in an agreement would be illegal.³²⁷ The scope of mandatory subjects is broader under the NLRA than under the Taylor Law. New York public sector laws external to the Taylor Law may render a subject of negotiations prohibited or permissive.³²⁸

b. Scope of Negotiations

The statutory duty to negotiate is applicable to wages, hours and other terms and conditions of employment. Union demands encompassed by this language are mandatory subjects of negotiation.³²⁹ Although the parties are under no statutory obligation to negotiate permissive subjects, if they do so, they are bound by their contractual obligations.³³⁰ A prohibited subject is one in which the contract clause demanded is illegal and, if granted, void.³³¹

Determinations concerning whether a demand to negotiate is a mandatory or a nonmandatory subject are usually made in the context of an unfair or improper practice charge alleging a refusal to negotiate in good faith or that the employer has engaged in unilateral action. In the public sector, determinations that a subject is prohibited are usually made by a court in the context of a lawsuit over a party's refusal to abide by a contract obligation or to challenge a term in an interest arbitration award.³³²

PRACTICE GUIDE

The treatise Developing Labor Law includes extensive commentary concerning the scope of negotiations under the NLRA. A useful booklet published by PERB specifies mandatory, nonmandatory and prohibited subjects under the Taylor Law. It is also incorporated into the New York State Bar Association's treatise Lefkowitz on Public Sector Labor and Employment Law, 4th Ed., 2019 Rev.

c. Conduct of Negotiations

The obligation to bargain collectively contemplates good-faith negotiations. The statutory mandate for collective negotiations "involves both a procedure for meeting and negotiating, which may be called the externals of collective bargaining, and a bona fide intention [to reach agreement], the presence or absence of which must be discerned from the record."³³³

A party is not negotiating in good faith if it comes to the table with "a resolve to adhere to a position without even listening to and considering the views of the other side."³³⁴ Subject to such defenses as changed economics³³⁵ or impossibility of performance,³³⁶ a party is also negotiating in bad faith if it withdraws agreements it has made during negotiations that have not yet been incorporated into a contract.³³⁷

Whether a party has the proper intention when it comes to the table is difficult to ascertain. This is particularly so because the obligation to bargain in good faith "does not compel either party to agree to a proposal or require the making of a concession."³³⁸ The party that properly engages in all the "externals" but does not have the appropriate attitude is said to have engaged in "surface bargaining."³³⁹ Surface bargaining is identified on the totality of the conduct as demonstrated by the evidence in record.³⁴⁰

Violations of the "externals" are easier to identify. These include such matters as a refusal "to meet at reasonable times,"³⁴¹ or an attempt to interfere with the opposing side's choice of representatives.³⁴² Similarly, a party may violate its duty to negotiate in good faith by insisting upon ground rules that are not part of the normal process. For example, notwithstanding the New York State Open Meetings Law, a public employer or union of public employees may not insist that the negotiations take place in public.³⁴³ Neither party may record negotiations without the consent of the other party.³⁴⁴ On the other hand, handwritten notes or minutes, no matter how detailed, are traditionally acceptable and therefore are not inconsistent with good-faith bargaining.

Under certain circumstances, a party must supply information to the other side to assist in preparing and conducting collective bargaining. For example, an employer that resists a demand for wage increases on the ground that it is financially unable to meet the union's demands may be required to open its books to substantiate its claim.³⁴⁵

As collective bargaining involves both an exchange of information and a give-and-take with respect to terms and conditions of employment, the duty to negotiate in good faith contemplates that the parties will appoint negotiators who are both sufficiently informed as to the relevant issues³⁴⁶ and vested with sufficient authority to make appropriate compromises.³⁴⁷ That requirement, however, does not preclude the reservation of the rights of ratification by the principals of the negotiators so long as that right is not abused.³⁴⁸

One other element of good-faith negotiations is that the parties must, upon request, execute written contracts incorporating the terms of agreements reached,³⁴⁹ but a collective bargaining agreement need not be in writing to be binding.³⁵⁰

4. Unilateral Action

An important aspect of the duty to bargain is that during the course of negotiation an employer may not unilaterally change the terms and conditions of its employees' employment. The parties may, however, fail to resolve the differences between them, notwithstanding the exhaustion of good-faith negotiations. If such irreconcilable differences persist, the NLRB will find that an impasse exists.³⁵¹ A private employer is then free to impose unilaterally those terms and conditions of employment that it had proposed in its last offer to the union.³⁵² In effect, the employer may present its last offer to the union and tell it to "take it or leave it." The union, for its part, can either accept those terms and conditions of employment or it can strike.

While strikes are generally permitted under the NLRA and SERA,³⁵³ they are prohibited by the Taylor Law.³⁵⁴ The corollary to the strike prohibition is that public employers in New York State are not free to take unilateral action when negotiations reach an impasse.³⁵⁵ Indeed, the Taylor Law expressly provides that public employers must continue to honor the terms of expired agreements until successor agreements are reached.³⁵⁶ Similarly, SERA prohibits an agricultural employer from refusing "to continue all the terms of an expired agreement until a new agreement is negotiated."³⁵⁷

PRACTICE GUIDE

The general practitioner representing a party filing an improper practice charge against a school district or a local government may have to file a notice of claim.³⁵⁸

5. Strikes and Other Concerted Activity

Under the NLRA and SERA strikes and the use of economic pressure during collective bargaining are accepted and legal tactics by unions, except by farm laborers under SERA.³⁵⁹ An employer may also use economic pressure. It does not violate the NLRA if, "after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position."³⁶⁰ This is called a "lockout." SERA prohibits agricultural employers from engaging in a lockout of farm laborers.³⁶¹ As noted above, these forms of unilateral actions are not permitted under the Taylor Law.

Strikes are often accompanied by picketing, and picketing is a protected concerted activity under § 7 of the NLRA. This protection, however, is not absolute. Picketing on private property, such as a shopping mall, may be restricted if alternative opportunities to communicate with the public are reasonably available to a union.³⁶² Picketing by public employees at the residences of board of education members has been enjoined.³⁶³

The NLRA itself prohibits picketing and other concerted activity in support of certain objectives.³⁶⁴ These are called secondary activities or secondary boycotts. In general, it is a violation of the NLRA to apply economic pressure to an employer other than the one with whom the union has a primary dispute.³⁶⁵

The rules as to what specific conduct is deemed improper secondary action and what is permitted are complicated...