The Dynamics of Union and Employer Relations in the US (Part IV)

By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

(Note: This article contains content adapted from lesson material written for APUS classes.)

This is the fourth article in a 10-part series on the dynamics of union and employer relations in the United States.

In the previous article, we discussed approaches that employers can legally adopt for actively deterring union encroachment. In this part, we’ll look at some of the basics of the collective bargaining process and the requirement of good-faith bargaining.

Collective bargaining negotiations can be some of the most difficult hurdles to overcome in the unionization process. But they are also some of the most important, as the consequences of such negotiations will likely affect the working conditions and benefits of employees for several years afterward. Since both sides believe it is their prerogative to be heavily involved in the decision-making process, it is not uncommon for each side to vie fiercely for control in negotiating situations.

The Three Types of Issues in Collective Bargaining Agreements between Union and Employer

In the U.S. labor relations system, issues in collective bargaining agreements can be categorized into three groups: mandatory, permissive and prohibited issues. Mandatory issues are those that the law requires be negotiated between the parties; these issues generally include wages, hours and working conditions.

Permissive issues, as the name betrays, are those issues that may also be deliberated and included in union agreements, but which are not required by law. These issues might include internal rules for the union or stipulations for the employer’s management. Either side can raise permissive issues, but the opponent is not required to respond.

Finally, prohibited issues are those that are unenforceable by law for reasons of illegality or unconscionability. Examples of prohibited issues include requirements that:

• Employers hire only union employees (i.e., the pre-entry closed shop conditions)
• Employees pay union dues in Right to Work states
• Employees purchase only union-made goods.

Contracts can contain information on compensation, benefits packages, time-off allowances, shift differentials, profit-sharing and other matters. All areas can potentially be negotiated or bargained, so long as they are not prohibited as explained above.

Some elements to consider prior to bargaining include:

• The interests of both the employee and employer
• Options for accomplishing those interests
• Benchmark data
• Consideration for the interests of all parties involved
• The best strategy possible to negotiate an agreement

Also, all parties need to evaluate bargaining power on each issue and whether it lies with the employer or the union.

The National Labor Relations Act Requires Both Parties to Bargain in Good Faith

The National Labor Relations Act (NLRA) requires good-faith bargaining. One example of bad-faith bargaining is unilateral change; that’s when the employer makes changes to wages, benefits or other terms of employment without first bargaining with the union.

Obviously, the nature of such labor relations agreements demands that any such changes be bilateral. There are, however, exceptions when unilateral changes may be permitted under certain circumstances.

Another example of bad faith is direct dealing. That occurs when the employer tries to negotiate with the employees without contacting the union. Under the NLRA regulations, once a union has been voted into a workplace, the employer must channel all such negotiation efforts through the union and cannot attempt to undermine its representation.

One final example of bad faith is surface bargaining. Surface bargaining occurs when parties enter negotiations with an appearance of cooperation, but with no actual good-faith intention to participate in the bargaining process. These parties “go through the motions,” but put no sincere effort into reaching successful accords.

In spite of these proscriptions, there are still legal and legitimate strategies that unions and employers can adopt for negotiating agreements. When either side presents an issue for discussion and deliberation, it is the duty of the opponent to evaluate the implications of the issue and strategize the most appropriate way to respond. During negotiation sessions, the goal is to ensure an acceptable outcome for all parties involved.

In the next part of this series, we’ll look at the two primary bargaining strategies that may be adopted: distributive negotiation and integrative negotiation.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.