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Understanding Why Signatory Contractors Have to (and Don’t Have to) Collectively Bargain

From FCA International -finishingcontractors.org/2022/02/14/do-we-have-to-negotiate-that-understanding-and-operationalizing-mandatory-permissive-and-illegal-subjects-of-bargaining/

Mar 2, 2022

Overview 

During contract negotiations, contractors know that wages and benefits will always be front and center. But, what about other subjects, such as travel time, bargaining unit scope, converting from an 8(f) to a 9(a) relationship, etc.? Is the contractor required to bargain over these subjects or can they refuse to bargain over the topic? The National Labor Relations Act (NLRA) divides the subjects of bargaining into three categories:

Mandatory – both parties (management and labor) have a statutory obligation to bargain these subjects.

Permissive– both parties may choose to (or refuse to) bargain these subjects.

Illegal– both parties must refrain from bargaining these subjects.

Generally, the test for determining whether a bargaining subject is mandatory or permissive is whether the subject “vitally affects” the relations between the employer and its employees. Provided below is a summary of common examples of each.

Mandatory Subjects

Mandatory subjects of bargaining include: 

  • Rates of pay and wages (e.g., shift differentials, bonuses, pensions, health and welfare plans, meals and discounts, profit sharing, etc.)
  • Hours of work (e.g., daily overtime, weekly overtime, etc.)
  • Other terms and conditions of employment (e.g., seniority, plant rules, work assignments, health testing, drug testing, union security, no strike/no lockout language, non-discrimination, etc.).

Again, parties have a statutory obligation to bargain over mandatory subjects of bargaining. The NLRA does not require agreement, of course, but the contractor must engage in bargaining over mandatory subjects of bargaining. 

Permissive Subjects

Permissive subjects are matters that the parties are free to bargain over, but have no obligation to do so. Permissive subjects of bargaining include the following: 

  • Definition of the bargaining unit
  • Union recognition clauses converting a Section 8(f) relationship to a Section 9(a) relationship
  • The inclusion of supervisors in the bargaining unit
  • Internal union affairs
  • Legal liability clauses (e.g., a provision fixing liability for violation of a no-strike clause)Industry promotion funds
  • Interest arbitration (such as Article X, Section 8)Settlement of unfair labor practice charges
  • Deductions for political action leagues
  • Union label clauses
  • Clauses prohibiting the arbitration of a dispute in the event the union has filed charges over the same issue with any state or federal agency

Illegal Subjects

Illegal bargaining subjects include: 

  • Provisions for a closed shop
  • A provision for a hiring hall giving preference to union members
  • “Hot cargo” clauses in violation of Section 8(e) of the NLRA, such as subcontracting restrictions concerning non-jobsite work that require the subcontractor to be signatory to a labor agreement.

It is important to remember, though, that a “union standards subcontracting clause” does not violate Section 8(e). Thus, a clause requiring the employer to subcontract non-jobsite work only to employees that observe union-equivalent wages, hours and benefits would not violate Section 8(e).

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