1 First National Maintenance: What is the Issue? Must an employer, under its duty to bargain in good faith “with respect to wages, hours, and other terms and conditions of employment,” … negotiate with the certified representative of its employees over its decision to close a part of its business?... whether First National Maintenance Corporation's decision to terminate its Greenpark... operation and to discharge the workers employed in that operation was a decision with respect to "terms and conditions of employment" within the meaning of the Act, thus rendering its failure to negotiate with the union unlawful.

2 First National Maintenance Decision to terminate Greenpark contract not a TCE –based on matters unrelated to labor cost Three types of Mgmt Decisions –Indirect/Minimal effect on employment, substantial effect on er (Type I) –Effect solely on employment (Type II) –Substantial effect on employment and er (Type III) Matter affecting employment must be amenable to resolution through CB

3 First National Maintenance (cont.) “Congress had no expectation that... the union... would become an equal partner in the running of the business.... (D3) “Management must be free from constraints of bargaining process to the extent essential for the running of a profitable business” (D4) –What are these constraints? Bargaining should be required if benefits to CB outweigh costs to management (D4)

4 General Principles Harm to er from negotiating over an economic partial shutdown outweighs potential benefit to labor relations and CB. –Possible need for secrecy to pursue business opportunities –Concern about actions of employees –Few CBA provisions limiting right to shut down –Importance of labor costs varies Application to First National Maintenance –Termination of contract with Greenpark due solely to differences in fee, not to matters related to TCE –Contrasts with Fibreboard, where decision based solely on labor costs/TCE

5 Two Kinds of Bargaining Decision Bargaining –Bargaining over the decision itself –Obligation to bargain is per First National Maintenance Effects Bargaining –Bargaining about the effects of a decision already made Severance pay, transfer rights –Always mandatory, regardless of whether bargaining requited over the decision