The Negotiator Magazine

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Management officials often complain to Labor Law teachers about how difficult it is to determine whether particular topics are mandatory bargaining subjects that must be discussed with union agents. Some subcontracting decisions that merely involve the substitution of less expensive outside workers for present employees must usually be bargained about, while other decisions involving partial department closures or other fundamental changes in the business do not have to be discussed. The Supreme Court endeavored to draw a clear line between these areas in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), where it indicated that "in view of an employer's need for unencumbered decision-making, bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective bargaining process, outweighs the burden placed on the conduct of the business." When basic firm decisions are based primarily on labor cost considerations and do not involve significant changes in company operations, bargaining will generally be required. On the other hand, when the decisions do not concern labor costs and do involve changes in basic operations, bargaining will not be necessary. Where the line between required bargaining and non-mandatory bargaining is to be drawn is never clear. This fact should not, however, frighten management officials.

As noted earlier, the duty to bargain does not require either party to agree to particular demands or the making of concessions. If company leaders are contemplating changes that might arguably be subject to mandatory bargaining, they should resolve doubts in favor of collective negotiations. They should inform union officials of their contemplated changes and offer to bargain. They should carefully explain the reasons for the proposed changes and request a union response. If the union is able to respond appropriately to their needs, company officials may decide to retain their current workers and adopt the union proposal. If union negotiators do not work to satisfy firm concerns, the company negotiators need only bargain to a good faith impasse. At this point, they may legally effectuate their last proposal despite union objection. They have to be certain to satisfy two crucial prerequisites to such unilateral changes. First, they must be sure they have reached a good faith impasse. This is when after thorough bargaining, the parties have reached presently irreconcilable positions. When in doubt, they should offer to have another bargaining session to be certain they have reached this point. Second, the changes they unilaterally implement cannot be more generous to the workers than those already offered by their side at the bargaining table.

Individuals who must participate in collective bargaining interactions should take a course on negotiating if they can and should read several books on the negotiation process. They should prepare for long, drawn-out talks which will take time to develop, both because of the many issues to be addressed and the political nature of union representatives. They should also recognize that most bargaining encounters will not be resolved until shortly before the existing contract is due to expire. If labor leaders agree to terms too early, unit personnel may suspect they have become too cozy with management and vote against contract ratification. If, on the other hand, management negotiators allow the union agents to take credit for the gains achieved through their last-minute efforts, the affected employees are likely to be pleased with the final results.

Charles B. Craver is the Freda H. Alverson Professor of Law at George Washington University. He is author of Effective Legal Negotiation and Settlement (5th ed. 2005 LEXIS), The Intelligent Negotiator (2002 Prima/Crown), and Can Unions Survive? (1993 N.Y.U. Press). He is also coauthor of law books on Labor Relations Law and Collective Bargaining. Over the past thirty years, he has taught negotiating skills to lawyers and business persons throughout the U.S., Canada, Mexico, England, Austria, and the People's Republic of China. He can be reached at: ccraver@law.gwu.edu

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April 2005