The company was charges with an unfair labour practice for failure to bargain in good faith. The union alleged that the company was engaged in surface bargaining with no intention of entering into a collective bargaining agreement. The company had begun meeting with the union after the NLRB had certified it. Eighteen bargaining sessions were held over an 11 month period. The negotiations did not result in a contract. The parties did reach agreement on a recognition clause; the numbers, rights, duties of union stewards; the use of a bulletin board by the union; pay for jury duty and other leaves of absence; a procedure for processing grievances and arbitrations; and plant visitations by union representatives.
The administrative law judge hearing the case found that the company met at regular intervals and bore no anti-union animus. The company’s conduct away from the bargaining table did not indicate that the company had no intention to conclude an agreement with the union. As there was no evidence of a failure to meet to discuss terms and conditions, the arbitrator had to examine the proposals by the company and by the union to see whether their substance indicated good-faith bargaining. The company’s proposals are briefly outlined as follows:
The company insisted that it remain in total control over wages. Wage increases were to be determined on the basis of semiannual merit reviews, in which the union would have no participation. The union had proposed a specific wage schedule, but the company would not adopt it.
2. Management rights.
The company retained absolute right to subcontract work, to assign it to supervisors, to abolish jobs, and to transfer, discontinue, or assign any or all of its operations to others. It required the union to relinquish the employees’ statutory right to notice in bargaining over such actions and their effects. Actions taken under the management clause were subject to the grievance procedure only if that right was limited by express contract provision, and there was no such limitation.
3. Zipper clause.
The company proposed a zipper clause, which waived the union’s right to bargain during the life of the agreement over anything that could have been considered mandatory or permissive under existing law.
4. No-strike clause.
The company proposed a no strike clause, including prohibition against a strike for unfair labour or unfair employment practices.
5. Discipline and discharge.
The company rejected the union’s proposal of a standard right to discipline an employee for “just or sufficient cause only.” The company intended to reserve exclusive authority over discharges and discipline in the management rights clause.
6. Layoff and recall.
The company proposed that the layoff and recall of employees would be at the company’s sole discretion.
7. Dues check-off.
The company rejected a union proposal that dues check-off clause be included in the contract.
8. Nondiscrimination clause.
The company rejected a union proposal that stated the company was not allowed to discriminate against union members. The company’s position was that because discrimination was illegal, a clause forbidding it did not need to be included in the contract.
1. Was the company bargaining in good faith? Explain your answer. 10 marks
2. Which company proposal was the most important in determining the “in good faith” issue? Explain. 10 marks
3. Suggest how principled negotiations techniques could be used in the case. 10 Marks