Collective Bargaining Action: When Employers Change Terms Alone

The subject matter of collective bargaining is divided into three categories, and the category determines what each party can demand, refuse, or impose unilaterally.

Mandatory subjects are wages, hours, and terms and conditions of employment. Both parties must bargain over mandatory subjects on request and cannot take unilateral action on a mandatory subject without first bargaining to impasse. Subcontracting unit work, changing health insurance contributions, modifying scheduling practices, and altering pension benefits are all mandatory subjects. An employer that implements these changes without notice and bargaining commits an unfair labor practice regardless of whether the existing contract is silent on the topic.

Permissive subjects are matters related to the business that are not directly tied to the terms and conditions of employment. Either party may raise permissive subjects at the table but neither party can insist on them to the point of impasse. Corporate structure, the identity of the employer's counsel at negotiations, and the choice of supervisory personnel are examples of permissive subjects.

Illegal subjects are provisions that would violate the NLRA or other applicable law. Neither party can lawfully agree to an illegal subject, and a provision in a collective bargaining agreement that violates the NLRA is unenforceable regardless of whether both parties negotiated and signed it. An attorney who handles labor laws and collective bargaining matters can categorize any disputed bargaining demand and advise on whether insisting to impasse on that subject is legally permissible.

Surface bargaining is the term used to describe a pattern of conduct in which a party goes through the motions of negotiating without any genuine intention of reaching agreement. It is the most common form of bad faith bargaining found in labor relations proceedings.

The board evaluates surface bargaining by examining the totality of a party's conduct at the table, not any single act in isolation. Evidence of surface bargaining includes making regressive proposals without explanation, refusing to counter proposals for extended periods, and conditioning movement on mandatory subjects on the other party's acceptance of permissive demands.

Information requests are a separate and frequently litigated component of the duty to bargain. A union that requests relevant information about wages, benefits, or unit work assignments is entitled to receive it in a timely and usable form. An employer that delays, provides incomplete data, or claims confidentiality over information the union needs to bargain intelligently commits an independent unfair labor practice regardless of its conduct at the table. The information obligation extends through the life of the contract to the grievance and arbitration process as well. An attorney who handles employment litigation and collective bargaining disputes can evaluate whether an information refusal rises to the level of an independent unfair labor practice.

When an employer implements changes to wages, benefits, or working conditions without bargaining to impasse, the unfair labor practice charge that follows can result in a make-whole remedy requiring restoration of prior terms and back pay for all affected employees. The longer the unilateral change remains in effect, the larger the back pay exposure grows. The six-month filing period under 29 U.S.C. § 160(b) runs from the date of implementation, not from the date the parties give up on resolving the dispute informally.

Grievance arbitration is the dispute resolution mechanism most collective bargaining agreements use to resolve disputes over the interpretation and application of the contract after it is signed, and it operates entirely separately from the unfair labor practice process.

A grievance arises when either party claims the other has violated a provision of the collective bargaining agreement. Most contracts require the parties to exhaust a multi-step grievance procedure before proceeding to arbitration. Failure to follow the contractual procedure can result in a waiver of the right to arbitrate the grievance regardless of its merits.

Timeliness requirements in grievance procedures are strictly enforced by arbitrators, making procedural compliance as important as the substantive merits of the underlying dispute.

The arbitrator's award is final and binding in most cases. Courts apply a highly deferential standard of review to labor arbitration awards under the doctrine established in United

Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593 (1960), and will vacate an award only if it does not draw its essence from the collective bargaining agreement. The selection of the arbitrator and the framing of the issue submitted to arbitration are two of the most consequential decisions in any grievance proceeding. An attorney who handles arbitration and collective bargaining disputes can evaluate the contractual language, prepare the arbitration submission, and present the evidence in a format that holds up under that deferential standard of review.

When a business is sold or transferred, the question of whether the new employer must recognize the existing union and honor the collective bargaining agreement is one of the most significant labor law issues in any transaction involving a unionized workforce.

A successor employer is one that acquires a business and continues to operate it with substantially the same workforce performing substantially the same work. A successor must recognize and bargain with the incumbent union but is not automatically bound by the predecessor's collective bargaining agreement. It may set its own initial terms of employment before bargaining, but once initial terms are set, it must bargain in good faith over the new contract.

Asset purchasers who want to avoid successor status structure their acquisitions to change a substantial portion of the workforce before resumption of operations. This strategy carries significant risk if the workforce retained is predominantly composed of the predecessor's union employees. Whether a planned acquisition will result in successor status requires analysis of the transaction structure, the planned workforce composition, and the nature of the work being acquired before the deal closes. An attorney who handles federal employment law and labor relations matters can evaluate the transaction structure and identify modifications needed to achieve the intended outcome.

Successor employer liability attaches at the moment the new employer begins operations with a substantially similar workforce. Once operations begin, the legal obligation to recognize the union and bargain is already in place. Restructuring the transaction to achieve a different labor law outcome is only available before that moment occurs.

Collective bargaining action refers to the legal process through which unions and employers negotiate the terms and conditions of employment covered by a collective bargaining agreement. Under the NLRA, 29 U.S.C. § 151 et seq., both parties must bargain in good faith over mandatory subjects including wages, hours, and working conditions. Good faith bargaining requires genuine engagement with proposals, timely responses to information requests, and refraining from unilateral action on mandatory subjects before reaching impasse.

No, not while a duty to bargain exists. Wages, benefits, and other terms and conditions of employment are mandatory subjects of bargaining. An employer that implements changes to these terms without first bargaining to genuine impasse commits an unfair labor practice. The remedy typically requires the employer to restore the prior terms and pay back wages to all affected employees for the period the unlawful change was in effect. The longer the change remains unaddressed, the larger the back pay liability grows.

An economic strike is a work stoppage over mandatory subjects of bargaining where the employer has not committed an unfair labor practice. Employers may permanently replace economic strikers. An unfair labor practice strike is caused by the employer's unlawful conduct, such as bad faith bargaining or unlawful unilateral changes. Unfair labor practice strikers are entitled to immediate reinstatement upon the strike's end, and permanent replacements must be discharged to make room for returning strikers.

An unfair labor practice charge must be filed with the regional office of the National Labor Relations Board within six months of the alleged violation under 29 U.S.C. § 160(b). This deadline is strictly enforced regardless of whether the parties were attempting to resolve the dispute through negotiation during that period. A charge filed one day after the six-month period is time-barred and will be dismissed regardless of the severity of the underlying conduct.

Impasse occurs when the parties have bargained in good faith over a mandatory subject and further negotiation is not likely to produce agreement. A genuine impasse permits the employer to implement its last best offer on the impassed subject. However, impasse does not end the duty to bargain. If the union subsequently modifies its position or requests resumption of bargaining, the employer's obligation revives. Declaring impasse prematurely, before genuine exhaustion of the negotiation process, is itself an unfair labor practice.

Grievance arbitration is the contractual dispute resolution process for disputes over the interpretation or application of an existing collective bargaining agreement. It is private, binding, and subject to minimal judicial review. An unfair labor practice proceeding addresses violations of the NLRA itself, is not governed by the contract, and results in a board order enforceable in federal court. The two processes address different types of disputes and can proceed simultaneously. An attorney who handles arbitration and mediation in labor matters can advise on which forum is appropriate for a specific dispute and whether pursuing both simultaneously is warranted.