An Overview of the Duty to Bargain in Good Faith Presented at NECA Labor Relations Conference March 26, 2008 New Orleans, Louisiana By: Gary L. Lieber, Esquire

HISTORICAL REFERENCE 1935 National Labor Relations Act (Wagner Act) Section 8(a) and Section Labor-Management Relations Act (Taft-Hartley Act) Section 8(b) – including DFR, secondary boycott, union duty to bargain in good faith Section 7 – right to refrain from Union activities *Section 301 – breach of collective bargaining agreement *Not regulated by NLRB

HISTORICAL REFERENCE 1959 Labor-Management Reporting & Disclosure Act (Landrum-Griffin Act) *Internal Union regulatory scheme Section 8(e) (hot cargo prohibition) and Section 8(f) (prehire agreements) *Not regulated by NLRB

OVERVIEW OF UNFAIR LABOR PRACTICES AGAINST EMPLOYERS § 8(a)(1) – unlawful interrogation, promises of benefits, threats, protected concerted conduct, catch-all § 8(a)(2) – dominating Union § 8(a)(3) – unlawful termination, discipline § 8(a)(4) – retaliation for giving evidence to NLRB § 8(a)(5) – refusal to bargain in good faith

MAJOR UNFAIR LABOR PRACTICES AGAINST UNIONS § 8(b)(1)(A) – restrain or coerce an employee – DFR, threats of violence, mass picketing; § 8(b)(1)(B) – selection of management’s spokesperson; firing supervisors for the way they apply contract terms; § 8(b)(2) – seek termination of a Union dissident; discriminatory hiring hall;

MAJOR UNFAIR LABOR PRACTICES AGAINST UNIONS § 8(b)(3) – Union’s duty to bargain in good faith; § 8(b)(4) – secondary boycott provisions; § 8(b)(7) – recognitional picketing.

OTHER PROVISIONS OF THE STATUTE REGULATED BY NLRB § 8(e) – prohibition against “hot cargo” agreements; § 8(f) – prehire agreements; § 8(g) – special strike provisions relating to health care; § 9 – Provisions Relating to Elections and Certification of Union Representative Status.

SECTION 7 Employee Rights Defined in Section 7 Sec. 7. Employees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

WHAT NLRB DOES NOT REGULATE Unfair Terminations – not an unfair labor practice to terminate for good reason, bad reason or no reason. Breaches of the Collective Bargaining Agreement – subject to grievance procedure and enforceable through Section 301.

DUTY TO BARGAIN IN GOOD FAITH Section 8(a)(5) states, “It shall be an unfair labor practice for an employer... to refuse to bargain collectively with the representative of his employees subject to the provisions of Section 159(a) of this title.”

DUTY TO BARGAIN IN GOOD FAITH DEFINED IN SECTION 8(d) (d) Obligation to bargain collectively 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;

BREAKDOWN OF SECTION 8(a)(5) OBLIGATIONS Meet and confer at reasonable times; “With respect to wages, hours and other terms and conditions of employment;” mandatory v. non-mandatory (permissive) or illegal; if not mandatory may not bargain the subject to impasse;

QUESTIONS TO CONSIDER 1.“Vitally Affect” BUE or remote/speculative 2.Unilateral Change – entrepreneurial or labor costs 3.Union Waiver

MANDATORY Wage Hours Employee Benefits (H & W, Pension, Apprenticeship) Safety Issues Hiring Hall/Referring Procedure Bonuses Union Security & Checkoff Company Disciplinary Rules Management Rights (as long as do not seek to reserve non-mandatory rights (e.g., right to tape negotiations) Drug Testing of current employees No-Strike

PERMISSIVE Retiree Health Benefits Industry Funds Interest Arbitration Clause Time Clocks Close Entire Business Tape Recording or Transcribing Bargaining Meetings Modify Bargaining Unit Description Performance Bonds & Indemnification Clauses Settlement of Unfair Labor Practice Cases As Condition Precedent Other Party’s Ratification Procedure

DEPENDS UPON CIRCUMSTANCES Written Rule implementing past practice which management reserved for itself Subcontracting 1.impact upon workforce 2.labor-lost impact or change in nature of business 3.waiver/zipper clause

ILLEGAL SUBJECTS Proposals in violation of law, e.g., 1.Hiring Union members only; 2.Unlawful subcontracting clause (e.g., not limited to jobsite)

PRACTICAL CONSIDERATIONS REGARDING THE DUTY TO BARGAIN 1.“Does not compel either party to agree to a proposal or require the making of a concession.” 2.Flexibility; 3.State reason for your positions; 4.Do not denigrate Union; 5.Bring in experts to discuss specific subjects.

Contact Information Gary L. Lieber, Esquire 2600 Virginia Avenue, N.W. Suite 1000 – The Watergate Washington, DC Phone: Fax:

Saul Ewing’s Office Locations Baltimore, Maryland Lockwood Place 500 East Pratt Street, Suite 900 Baltimore, MD fax: Chesterbrook, Pennsylvania 1200 Liberty Ridge Drive, Suite 200 Wayne, PA fax: Harrisburg, Pennsylvania Penn National Insurance Tower Two North Second Street, 7th Floor Harrisburg, PA fax: Newark, New Jersey One Riverfront Plaza Newark, NJ fax: New York, New York 245 Park Avenue, 24th Floor New York, NY Fax: Philadelphia, Pennsylvania Centre Square West 1500 Market Street, 38th Floor Philadelphia, PA fax: Princeton, New Jersey 750 College Road East Princeton, NJ fax: Wilmington, Delaware 222 Delaware Avenue, Suite 1200 Wilmington, DE fax: Washington, D.C Virginia Avenue, N.W. Suite 1000 | The Watergate Washington, D.C fax: