Labor Law II

The Election: One of the most important functions of the National Labor Relations Board is to police the process by which employees decide whether they want an exclusive bargaining representative, and if they do, which union will become their representative. The NLRB seeks to provide pristine pure "laboratory conditions" conducive to a fair election. If the board finds that improper pre-election conduct has occurred, it may order a new election. Rules of proper pre-election conduct have been developed on a case-by-case basis through board decisions. The board may overturn an election if infected improper conduct by union or management. In limited cases, the NLRB may require the employer to recognize and bargain with a union as the sanction for improper conduct.

A representational election begins by a petition filed on behalf of at least 30 percent of the employees within the appropriate bargaining unit. The NLRB may inspect the petitioners' cards to determine their validity: the employer may not. Representation elections may not be held more frequently than once per year for a particular unit. Difficulties and disputes may arise when an employer substantially changes its workforce through merger, acquisition, or spin-off of some kind. The NLRB provides a pre-election method of establishing the appropriateness of a bargaining unit. The definition of the bargaining unit can be controversial in some circumstances. There are a variety of issues in this context. Should the unit extent beyond a single plant; what job descriptions fit appropriately within the unit; which employees may not be in a union at all. The NLRB looks at the "community of interest" amongst employees; the historical extent of union activities directed at particular classes of employees; the desires of employees; bargaining history; and the employer's own organizational structure. The scope of the bargaining unit must be determined before the election is conducted, because that determines the list of eligible voters.

The parties may agree to an election procedure, or failing agreement, the regional director will issue an order scheduling the election and establishing other procedures. A voter list is compiled and the Board issues a notice of election. A variety of rules and procedures assuring a fair election are in existence. If no ballot question receives a majority, a runoff election will be held. After an election, the Regional Director issues a certification: if a union is certified, it becomes the exclusive bargaining representative for the certified bargaining unit.

The Duty to Bargain in Good Faith:  What does the NLRA mean when it requires an employer to bargain collectively with its employees' exclusive bargaining representative.   The employer cannot be forced to accept a particular wage demand, so what does this duty require.  Can the employer meet the obligation merely by going through the motions of bargaining, but without making any concessions at all?   If it could be required to make concessions, wouldn't that lead to a form of binding arbitration, where the government imposes the contract instead of the parties.  Here are the duties imposed by law:

• The duty to meet, confer and negotiate:  parties must meet at reasonable times and confer in good faith
• The duty to bargain in good faith
• The duty to bargain with respect to appropriate subjects of collective bargaining.

Subjects of Collective Bargaining:  We would all agree that wages  of employees within the bargaining unit falls within the appropriate scope of collective bargaining.  And we would all agree, presumably, that choice of the company president falls outside the scope of bargaining.   Labor law tells us that management must bargain about some topics:   wages, hours, or other terms and conditions of employment fall within this category.  Some categories are permissive-the parties can bargain about them if the choose.  The parties cannot bargain about illegal provisions--such as provisions which violate anti-discrimination laws.  Here are some examples of issues which may be raised in this context:

• Unilateral changes during bargaining.  An employer who imposes unilateral changes in wages or working conditions subject to bargaining may be deemed to be bargaining in bad faith.
• Refusal to sign a contract conforming with the agreement.
• Circumventing the bargaining process by direct negotiations with employees.
• Refusal to meet and bargain

Other activities may constitute bad faith, depending on the totality of circumstances. Both sides have a tremendous amount of flexibility: citations for bad faith usually result from an accumulation of actions signifying a total disinterest in arriving at a bargained agreement.

Duty to Furnish Information:  An employer has a duty, on request, to supply the union with information relevant to the subject matter of bargaining.  A party makes information relevant, in part, by making an assertion in bargaining to sustain its position.  An employer who asserts in bargaining that it cannot pay the market wage for a position because the company is unprofitable thereby opens itself to a request for financial information regarding its profitability.  An employer who asserts that wage increases are out of line with wages for non-union employees opens itself to inquiries in this area.  The Board has ordered disclosure of a variety of information regarding wages, benefits, and personnel costs as plainly relevant to bargaining.