Rights and Obligations of Employers and Unions

We understand that it can be tough to learn that your employees are planning to unionize, despite your efforts to create a fair and safe work environment. We know that you want to do your best for your employees and your company. While labor unions have been declining over the years, there is a resurgence of union organization as many believe that unions have been instrumental in establishing employee rights and conditions. That's why it's important to understand your rights and obligations as an employer and those of a union.

What is Collective Bargaining and Why Does it Occur?

There are many reasons employees may want to unionize, including higher pay, better benefits, and a safer work environment. Collective bargaining is the process in which employees and their union representative negotiate with their employer to determine the terms and conditions of the Collective Bargaining Agreement (CBA) (i.e., the contract between the employer and the union).

What are Employer and Union Rights and Obligations?

Understanding the rules which govern the collective bargaining process are key to a successful negotiation. The National Labor Relations Act (NLRA) forbids any employer from restraining, interfering, or coercing employees’ rights to organize, join, or assist in a labor activity for collective bargaining purposes. All employees have the right to work together to improve the terms and conditions of their employment. And vice versa, unions cannot restrain, interfere, or coerce employees if they do not want to unionize.

Once your employees exercise their right to unionize, the employer and union are obligated to meet to bargain in “good faith” regarding terms and conditions laid out by the employees. These terms and conditions could be about wages, hours of work, vacation/time off, benefits, and any other topics that might lead to improvement of the employees’ working conditions. Refusal to bargain collectively with one another is considered unfair labor practices (NLRB Section 7&8(a)(1)). Neither an employer or union is obligated to reach an agreement or make any concessions until they have met on an agreed upon time and place.

After sufficient “good faith” efforts, if both employer and union do not come to an agreement, the employer can declare an impasse and implement the last offer presented to the union. Keep in mind that the union could disagree that a true impasse has occurred and file a charge of unfair labor practices for not bargaining in “good faith.” At that time the National Labor Relations Board (NLRB) will review the documents provided by both sides detailing the history of the negotiations and what was understood by each side to determine whether a true impasse has occurred.

If the NLRB concludes that an impasse was not reached, the employer will be asked to return to the bargaining table without prejudice. In some extreme cases, the NLRB could seek a federal court order to force the employer to bargain. The Federal Mediation and Conciliation Service (FMCS) should also be notified within 30 days after the dispute to serve as a sounding board as a mediator between the employer and union.

If both employer and union agree to all the terms and conditions laid out during negotiations, both sides acted in “good faith” and a CBA will be finalized, signed, and recorded.

Most believe that the obligations of the employer and union end when the contract expires’ however, that is incorrect. Both the employer and union must bargain in “good faith” for a successor contract, or for the termination of the agreement while the terms of the expired contract remain in place. This can be done with a Modification of Understanding (MOU). The MOU will lay out terms of agreement until the upcoming scheduled negotiation.

Both employer and union have the right to terminate or modify the agreed-upon contract. This language is usually written in the CBA and if so, those terms should be followed. However, in most cases, either side must notify the other party in writing sixty (60) days before the expiration date or sixty (60) days before the proposed termination or modification and must offer to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications in “good faith.” All the terms and conditions of the existing contract continue for a period of sixty (60) days after such notice is given, or until the expiration date of such contract, whichever occurs later.

What is Considered “Good Faith” Bargaining?

It is the duty of both parties – the employer and union - to bargain in good faith, which means both sides are actively participating in deliberations to come to a mutual consensus. Having an open mind and a sincere desire to reach an agreement are key attributes when going into negotiations.

The idea of “good faith” was incorporated so that neither employers nor unions come to the bargaining table and just go through the motions of negotiating without the sincere goal of compromise. It is crucial to keep a good record of proposals, discussions, and minutes for the NLRB to review if there is ever a situation in which you must prove that you honored your obligation to bargain in good faith.

During the time of negotiations, any conduct away from the bargaining table could also be relevant. You want to ensure conversations are limited and discrete within your party. Any unilateral change without bargaining can be considered bad faith.

How Does this Effect “Right to Work” States?

In 1935, the NLRA passed the secure rights of unions to represent employees in their relationships with employers. Over 25 states have banned union-security agreements by passing “right to work” laws. In “right to work” states, it is up to each employee to choose if they would like to join the union and pay dues. Regardless of whether they choose to do so, in “right to work” states, they are still covered and protected by the CBA that was negotiated by the union.

Further Obligations for Employers

It is illegal for employers to engage in certain conduct that violates the rights of their employees. Such conduct includes:

• Threatening employees with job or benefits loss if they join or vote for a union or engage in protected concerted activity.
• Threatening to close the plant if employees choose a union to represent them.
• Questioning employees about their union sympathies or activities in a way that interferes with their rights under the Act, or to promise benefits to employees to discourage their union support.
• Employers cannot punish employees by transferring, laying off, terminating, or assigning them more difficult work tasks because of their union or protected concerted activity.
• Employers cannot retaliate against employees who file unfair labor practice charges or participate in an investigation conducted by NLRB.

Further Obligations for Unions

Labor organizations play a critical role in ensuring that employees are treated fairly and have a voice in their workplaces. However, some conduct by labor organizations violates the law and undermines the very principles they are meant to uphold. Examples of such conduct include:

• Threatening employees with job loss unless they support the union.
• Punishing employees for not being union members, even if they have paid initiation fees.
• Refusing to process grievances due to criticism of union officials or non-membership.
• Fining former members who engage in protected activities or cross unlawful picket lines.
• Engaging in picket line misconduct, such as threatening or assaulting non-strikers.
• Striking over issues unrelated to employment terms or coercing neutrals into disputes.

These actions not only harm employees but also damage the reputation of labor organizations, making it harder for them to achieve their goals. It is imperative that labor organizations adhere to the law and uphold the values they were founded upon.

The Redstone Government Consulting Human Resources Team can assist with the challenges associated with all aspects of unionization, good faith bargaining and grievance procedures.