What are Mandatory, Permissive, and Illegal Subjects of Bargaining?

Employers are pleasantly surprised when I tell them that bargaining for a collective bargaining agreement does not mean that every part of running their business must be negotiated. I then explain what a management rights clause is – a blog entry for a later day – and the difference between mandatory, permissive, and illegal subjects of bargaining. It’s easier to describe these in reverse order.

Illegal Subjects of Bargaining:  This is easy. An illegal subject of bargaining is one where, even if it is included in a collective bargaining agreement, it is unenforceable. For example, if a labor contract said that if employees are late to work three times in one week, those employees are required to snort cocaine the rest of the month. Snorting cocaine is illegal, so unions and companies are not allowed to bargain for that type of clause in a contract. A little less outlandish, but no less illegal, are clauses requiring a closed shopunion-shop clauses in right-to-work states, hot cargo agreements, and anything that violates any state or federal employment law.

Permissive Subjects of Bargaining:  These are subjects that are not mandatory subjects of bargaining. Either party can propose to discuss permissive subjects of bargaining, and the other side may voluntarily bargain on those subjects. Neither party may insist on bargaining that subject to the point of impasse. Once bargaining begins on a permissive subject, either side can end the bargaining on that subject without penalty. Examples of permissive subjects of bargaining are; the definition of the bargaining unit; internal union matters (which unions won’t negotiate); terms and conditions of employment for management employees (which employers shouldn’t negotiate); and the use of a court reporter at bargaining.

Mandatory Subjects of Bargaining:  Certain terms and conditions of employment that must be negotiated between management and unions are called mandatory subjects of bargaining. An employer may not make a change in a mandatory bargaining subject without providing the union prior notice and an opportunity to bargain over the desired change. Neither the employer nor the union can refuse to bargain over mandatory subjects of bargaining. Examples of subjects that are mandatory for bargaining include wages, benefits such as health care and pension, grievance and arbitration procedures, contract length, seniorityunion security clausesstrikes and lock outsmanagement rights clauses, and other terms and conditions of employment.

There is a very thin line between many mandatory and permissive subjects of bargaining – and for the untrained eye, that line can disappear quite easily. Employers who negotiate their own labor contracts must watch out that they are not being forced to bargain over permissive subjects of bargaining.

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Micro Bargaining Units


As appeared in the Human Resource Association of Central Ohio (HRACO) monthly newsletter


Micro Bargaining Units: Prepare to Manage Multiple Union Contracts

Women’s shoes, long the topic of conversation in break rooms, are now being discussed in board rooms. Corporate executives and human resource personnel alike are holding meetings to talk about high-end shoes for ladies. Specifically, discussions about ladies shoes sold at Bergdorf Goodman on 5th Avenue in New York City have passed through the mouths of management from Savannah to Seattle because employees of that store’s shoe department started a new era: micro-sized bargaining units will likely become de rigueur.

The law had been the same since 1957. An appropriate bargaining unit for retail stores was presumed to consist of a “wall-to-wall” unit, which means everyone in the store should be in one bargaining unit. This wall-to-wall unit arose out of the extreme crossover that employees have in the retail setting. One minute employees are stocking shelves, the next they are running a cash register, and after that they are sweeping the floor and taking out the trash. Last month, though, the presumption of a wall-to-wall bargaining unit was erased.

Now, retail store employees can be divided into multiple collective bargaining units as small as two employees based on nothing more than the nature of the product they handle. In essence, particular employees in a particular department on a particular floor of a business can now unionize. A union can organize bits and pieces of a company at different times knowing that it would be unsuccessful in obtaining a majority vote for a traditional wall-to-wall unit. This precedent will probably lead to a multiplicity of small bargaining units that operate under myriad collective bargaining agreements.

To put this in perspective, Bergdorf Goodman has 372 salespeople working in 18 departments and could theoretically have at least 18 different collective bargaining agreements with 18 different unions. If this happened, salespeople would likely be prohibited from working in departments outside their union’s jurisdiction. So the men’s suit salesman could not help customers in the men’s casual wear department and the ladies who sell perfume could not cover for the ladies who sell handbags when they are busy or on break.

So how did this new law come to be? The NLRB found that the 42 salespeople in the women’s shoe department – located on the 2nd and 5th floor of the store – were an appropriate bargaining unit because although “all sales associates work toward a common goal of selling merchandise, the women’s shoe department has the unique goal of selling shoes in particular.” Specifically, “if a shoe is not sized appropriately for a customer, discomfort and possible knee, back, and other physical injuries could result.” There were a few other differences between the women’s shoe associates and the sales associates in other departments, but they were minor when compared to the community of interest all sales people shared such as the same hiring criteria, common supervision, same hours, same working conditions, same health care, same vacation policy, same holiday pay practice, same evaluation criteria, and same employee cafeteria.

What Does This Mean to HRACO Members?

Statistics show that unions win more elections in smaller units; it is easier to convince 3 out of 5 people to vote in favor of a union that it is to convince 187 out of 372 employees to do the same. The prevalence of micro-units allows unions to start small and expand their presence from within your organization. Here is an example that I frequently use with my clients – especially when representing small businesses:

Imagine a small diner with just six employees – two waitresses, two cooks, and two dishwashers. Each job classification can become unionized separately. The waitresses could be members of the Teamsters, the cooks could be UFCW, and the dishwashers could belong to the Steelworkers union. Each group of two employees can have their own collective bargaining agreement, their own grievance and arbitration procedures, and can go on strike at different times, etc. The administrative costs of bargaining and managing these three separate contracts could quickly become cost-prohibitive for the small diner.

Although my example highlights a small company, the same analogy applies to larger organizations, like Bergdorf Goodman, where 42 out of 372 may be represented by the Retail Wholesale Department Store Union, and speculatively, 23 by the United Autoworkers Union, 18 by the Machinists Union, 51 by the Laborers, and the list goes on and on….

What Should HRACO Members Do?

Human resource personnel of non-union workplaces should identify groups of employees who are susceptible to being isolated into small bargaining units. Once identified, determine whether it makes business sense to ensure that those groups share an overwhelming community of interest with other groups of employees so as to protect the company from micro-units developing in the future. If unclear as to what factors are examined when determining a community of interest, please consult with your company’s labor attorney or labor relations advisor.

Human resource professionals whose employers already have a union should evaluate whether other groups of employees could be “tacked onto” the pre-existing bargaining unit now that the community of interest standard has been lowered. These HR professionals should also evaluate the susceptibility of employees being grouped into micro bargaining units, just like the personnel at non-union facilities.

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.