Monday, July 28, 2014

Employers and Employees Use Collective Bargaining to Negotiate Employment Terms

Q:       What is collective bargaining?
A:        Collective bargaining is the negotiation of matters regarding employees’ wages, benefits and other terms and conditions of their employment. Collective bargaining occurs between the employer’s representatives and the union, which the employees have selected to be their exclusive bargaining representative. 

Q:       What law governs collective bargaining?
A:        Most private employers are covered by the National Labor Relations Act (NLRA), which is enforced by the National Labor Relations Board (NLRB). Some businesses in the railroad and airline industries are covered under the Railway Labor Act, and some very small enterprises may not be covered at all. Civil servants in the federal government are covered by the Civil Service Reform Act, and state, county and municipal workers fall under state or local laws. Postal workers are covered under the Postal Reorganization Act, the NLRA and the Labor Management Relations Act.
            Public employers are also governed by the state’s collective bargaining law, which, in Ohio, is enforced by the State Employee Relations Board (SERB). State collective bargaining laws limit the right of certain workers, such as police and firefighters, to strike. These workers are subject to final offer arbitration, known in Ohio as conciliation.

Q:       What must be included in a collective bargaining agreement?
A:        The law does not dictate contract terms and neither the NLRB nor SERB will impose terms upon the parties without their agreement. Rather, the law provides a framework so management and labor can negotiate a contract governing wages, hours and working conditions. The law limits the unilateral power of employers, protects workers’ rights to organize and engage in “concerted activity for mutual aid and protection” and prohibits discrimination against workers who exercise these rights.

Q:       What does it mean to bargain “in good faith?”
A:        It means that the parties must negotiate with honest intentions about the wages, hours, terms and conditions of employment and provisions of a collective bargaining agreement. Good faith is mutual obligation to meet at reasonable times and places, and to bargain with the intention of reaching agreement or resolving contract questions. “Hard bargaining” (taking a strong position on an issue) does not violate the law, but the following approaches constitute bad-faith bargaining and do violate the law:
·       surface bargaining (going through negotiation motions without intending to reach an agreement);
·       a “take-it-or-leave-it” approach; and
·       refusing to meet, delaying meetings or failing to give the chief negotiator sufficient authority to make agreements.
            If either party fails to bargain in good faith, the other may file an unfair labor practice charge. Good faith is determined based on the totality of circumstances.

Q:       Must an employer bargain with the employee’s union over everything?
A:        No. The law recognizes these three types of bargaining subjects:
·       Mandatory subjects involve issues of wages, hours and working conditions. The parties have to bargain over mandatory subjects.
·       Permissive subjects involve subjects other than wages, hours and working conditions (e.g., ground rules for negotiations, settlement of unfair labor practice charges or pension benefits). These may be voluntarily discussed but cannot be bargained to impasse, and either party may refuse to bargain over a permissive subject. If the parties do reach agreement on a permissive subject and incorporate it into a collective bargaining agreement, then they must abide by that agreement.
·       Illegal subjects include any proposal that violates National Labor Relations Act (NLRA), the Public Employees Relations Act (PERA), the Civil Service Reform Act (CSRA) and/or any other federal, state, county or municipal law. Illegal agreements/provisions are void and cannot be enforced.

Q:       May an employer change employment conditions during bargaining?
A:        No. Employers must maintain the “status quo” regarding existing wages, hours and working conditions, even if a contract has expired—unless there is an impasse in negotiations. An impasse means that neither party is willing to compromise further to reach an agreement. If a legal impasse has been reached on an issue, the employer may then unilaterally impose on its employees its last offer regarding that issue. For certain public employees (e.g., police and firefighters), the employer must maintain the status quo until an agreement is reached, either mutually or through conciliation.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Margaret J. Lockhart, an OSBA Certified Specialist in Labor and Employment Law who is associated with the firm of Marshall & Melhorn. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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