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 shop, union-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, seniority, union security clauses, strikes and lock outs, management 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 ensure 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@MattAustinLaborLaw.com or by phone at 614843.3041.