Section 11 Employers Duty to Bargain in Good Faith 8(a)(5)

• Library: Emp-Emp Law 2000

NLRA § 8(a)(5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees . . . .” 29 U.S.C. § 158(a)(5). NLRA § 8(d) defines this requirement as:

[T]he 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 . . . .

29 U.S.C. § 158(d).

A number of doctrines and concepts that bear little relationship to the common law have developed from these few words. Any allegation involving a violation of NLRA § 8(a)(5) requires careful attention to the ever-changing state of Board law. This limited discussion will mention a few of the most commonly encountered problems.

The duty to bargain arises when a union represents a majority of an employer’s employees in an appropriate unit if certain other conditions are met. The duty may arise when the employer voluntarily recognizes the union, which might occur when the union submits signed authorization cards and the employer checks them or some third party checks the cards. The duty may arise when the employer commits other unfair labor practices that preclude the union from obtaining a Board certification. Perhaps the most common situation occurs when the union wins an election conducted by the NLRB...