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"Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration." Lincoln's First Annual Message to Congress, December 3, 1861.
Mandatory, Permissive & Illegal Subjects of Bargaining
Updated On: Sep 05, 2006
Mandatory, Permissive and Illegal Subjects of Bargaining
Collective bargaining is the process of negotiating a lawfully binding agreement between the union and the employer. This collective bargaining agreement governs the wages, hours and other terms and conditions of employment and is enforceable through the grievance and arbitration procedure. As the exclusive bargaining representative for a defined unit of workers, the union is empowered to negotiate such an agreement. Questions arise then, what issues can be put on the table for bargaining?
What topics are legitimate and which are not? What does "reasonable times" mean and what is "good faith"? Why does it matter that some issues are mandatory and others are permissive? What does "impasse" mean?
Bargaining Basics The duty to bargain is imposed equally on both the employer and the union. This means that the parties must come to the bargaining table in "good faith" to negotiate. Simply put, this means that the parties bargain with the attempt to reach an agreement. It does not mean nor require that the parties actually reach a final agreement, but rather that they engage in the process of bargaining. This involves meeting at reasonable times and places and with some frequency.
Bad faith bargaining is the flip side of good faith. It is defined not by any single incident, but rather by the whole conduct of bargaining, or, as the National Labor Relations Board refers to as the "totality of conduct." Therefore, if the employer is simply going through the motions of bargaining—showing up at the designated times, but never engaging in the process, exchanging proposals, etc., that is defined as "surface bargaining." Other indicators of bad faith include: long delays in bargaining; canceling or postponing bargaining dates; refusal to meet; unilaterally shortened sessions; failure to exchange proposals.
Finally, "impasse" is the point at which the bargaining process has been exhausted after the parties have engaged in good faith bargaining without reaching an agreement. It is elusive at best to tightly define impasse, but it basically means that further negotiations will not result in any progress towards a final agreement. The problem and danger with reaching impasse is that the employer is then permitted to unilaterally implement its "last, best offer" that it had put on the bargaining table even though no agreement had been reached. The union has the right to strike if impasse and implementation occurs.
Bargaining issues are divided into three basic categories: mandatory, permissive and illegal subjects of bargaining.
Mandatory Subjects Mandatory issues of bargaining are those subjects that directly impact "wages, hours or working conditions." These subjects have also been referred to as those that "vitally affect" employees. This means that any subject that either party proposes to bargain over that impacts any of these three areas, has to be negotiated in good faith. These are subjects over which the parties must bargain if they are requested to do so by the other party. This does not mean however, that the parties have to reach agreement, but rather that they have to engage in the process.
Mandatory subjects for the most part, tend to be reasonably straight forward.
Examples of mandatory subjects include: wages, shift premiums, overtime, premium pay, longevity, pay for training, holidays, sick days, hours of work, work schedules, grievance procedure, workloads, vacancies, promotions, transfers, layoff and recall, discipline and discharge, dues check off, on call pay, severance pay, pensions, health insurance, leaves of absence, tuition reimbursement, job duties, seniority, probationary period, testing of employees, rest and lunch periods, bargaining unit work, subcontracting, no strike clause, nondiscrimination.
"Permissive" or non-mandatory issues of bargaining are those which the parties may bargain over, but are not required. If the employer puts a permissive subject on the table, the union may engage in bargaining, but it is not obligated to do so. The union may agree to discuss the matter, engage in full bargaining and reach agreement on the issue, or decline to talk about it at all. That permissive issue then would be a dead issue. Either party may choose to keep it on the table, but they cannot force such an issue to impasse. Also, a strike over a permissive subject would be an unprotected activity, and unilateral implementation by the employer would be illegal.
Examples of permissive issues are: definition of the bargaining unit (found in the recognition clause), retiree benefits, internal union matters (such as how floor representatives are elected, the amount of union dues, union officer structure, etc.), supervisor’s conditions of employment, interest arbitration and make-up of the employer's board of trustees or directors.
This is an important category to keep in mind as the union bargains. It is not unusual to get bogged down on an issue that the union can simply identify as permissive and decline to continue bargaining over. Let's say the employer puts a proposal on the bargaining table to remove a classification of nurses from the bargaining unit, like per diem nurses. The union may engage in the process and learn what the hospital's concerns are, but the union can at any time declare the issue to be permissive and refuse to continue bargaining over the item. The union does not have to make any concession or come to any agreement over a permissive issue.
The third category is illegal subjects of bargaining. These are items that cannot be bargained over legally by either party. These issues violate a law and cannot be entered into a contract legally even if both parties agree. Examples of illegal subjects are: discrimination against a legally recognized group of people; hot cargo clauses (a provision allowing workers to refuse to handle material or goods from a struck facility or on an "unfair" list); closed shop clauses (a provision that all employee are union members before being hired-made illegal under the 1947 Taft-Hartley provisions).
It is critically important to understand these issues as well as the types and categories of collective bargaining issues. A clear understanding of these types of issues helps the union to formulate a bargaining strategy and tactics as the process develops.
By Joe Twarog, Associate Director, Labor Education & Training, Massachusetts Nurse