CLASS 7

1
CLASS 7

• BARGAINING CASES

2
SEIU 140 V. SCHOOL DIST. 1

• AUGUST 2003
• ERB
• PORTLAND SCHOOL DISTRICT

3
FACTS

• FEBRUARY 2002-DISTRICT NOTIFIES THE UNION THAT IT
  WANTS TO CONSIDER CONTRACTING OUT OF CUSTODIAL
  SERVICES
• THE UNION MAKES A TIMELY DEMAND TO BARGAIN THE
  DECISION AND THE IMPACT OF CONTRACTING OUT OF
  SERVICES

4
THE BARGAINING

• MET OVER A PERIOD OF SEVERAL MONTHS
• THE DISTRICT NEEDED TO SAVE 9.8 MILLION DOLLARS
  TO AVOID CONTRACTING OUT
• THE UNION MADE NUMEROUS PROPOSALSALL OF WHICH
  WERE REJECTED

5
THE DEADLINE

• MANAGEMENT SET A DEADLINE FOR SIGNING THE DEAL
  WITH THE CONTRACTOR AND INDICATED THAT THEY WOULD
  BARGAIN UP UNTIL THAT TIME
• THEY GAVE NOTICE TO THE UNION OF THIS

6
EXISTING CONTRACT LANGUAGE

• WAS SILENT ON THE ISSUE OF CONTRACTING OUT
• CONTRACTS SOMETIMES HAVE BANS ON CONTRACTING OUT
• SOMETIMES MANAGEMENT SECURES THE UNILATERAL RIGHT
  TO CONTRACT OUT
• SOMETIMES THE CONTRACT MODIFIES THE STATUTORY
  BARGAINING PROCESS
• SOMETIMES, AS HERE, IT IS SILENT AND DEFAULTS TO
  THE EXISTING STATUTORY PROCESS OF BARGAINING

7
DETAILS OF THE PROPOSALS

• UNION PROPOSED
• TO FOREGO COST OF LIVING INCREASES
• INSTITUTE A 7 TO 9 DAY FURLOUGH
• CAP INSURANCE COSTS
• SET UP A JOINT COMMITTEE

8
MANAGEMENT RESPONSE

• WE HAVE A 40 MILLION DOLLAR SHORTFALL
• WE NEED TO SAVE 5 MILLION IN CUSTODIAL DOLLARS
• UNIONS PROPOSAL ONLY SAVED 2 MILLION

9
RE-OPENER BARGAINING V. MID-TERM BARGAINING

• THERE IS A LENGTHY DISCUSSION REGARDING RE-OPENER
  v. MID-TERM BARGAINING
• RE-OPENERS ARE CONTRACTUALLY BARGAINED
  RE-NEGOTIATIONS ON CERTAIN PROVISIONS OF THE
  LABOR AGREEMENT, I.E. WAGE RE-OPENERS IN THE
  SECOND YEAR OF A CONTRACT
• MID-TERM BARGAINING IS THE RAISING OF ISSUES
  DURING THE CONTRACT THAT WERE NOT ANTICIPATED OR
  SCHEDULED (MORE ON THIS NEXT CLASS SESSION)

10
BOARD DISCUSSION

• CONTRACTING OUT RAISES UNPLEASANT ISSUES
• THE BOARD DOESNT JUDGE THE PARTIES INTENTIONS OR
  MOTIVATIONS

11
WHAT IS GOOD FAITH

• REQUIRES A PARTY TO CONSIDER ALTERNATIVE TO
  CONTRACTING OUT WHERE THE DECISION IS
  ECONOMICALLY MOTIVATED
• YOU CANT MAKE A FINAL DECISION ON CONTRACTING
  OUT UNTIL THE BARGAINING IS COMPLETED
• BUT YOU CAN SOLICIT BIDS FOR SERVICE FROM THE
  CONTRACTORS

12
SURFACE BARGAINING

• SURFACE BARGAINING IS BAD FAITH BARGAINING WHERE
  THERE IS NO REAL DESIRE TO REACH AN AGREEMENT
• IT IS LOOKED AT FROM THE TOTALITY OF THE
  CIRCUMSTANCES
• DILATORY TACTICS
• CONTENT OF PROPOSALS
• NATURE AND NUMBER OF CONCESSIONS
• LACK OF EXPLANATION FOR PROPOSALS

13
CONTENT OF PROPOSALS

• UNION SAYS THAT 9.8 MILLION OVER TWO YEARS IN
  SAVINGS IS UNREASONABLE
• WOULD RESULT IN A 1/3 REDUCTION OF EXISTING
  COMPENSATION
• THE BOARD SAYS THAT SINCE THERE WAS A FINANCIAL
  CRISIS THIS IS NOT BAD FAITH BARGAINING

14
CONCESSIONS AND COUNTER PROPOSALS

• NEITHER PARTY IS COMPELLED TO AGREE
• THE UNION WANTS THE DISTRICT TO MEET THEM IN THE
  MIDDLE, THE BOARD WILL NOT REQUIRE THIS
• THE DISTRICT ENGAGED IN HARD BARGAINING, NOT
  SURFACE BARGAINING

15
COURSE OF NEGOTIATIONS

• EVIDENCE THAT A PARTY NEVER INTENDED TO REACH AN
  AGREEMENT IS WHAT IS REQUIRED FOR BAD FAITH
• WAS THE SOLE INTENTION GETTING THROUGH THE
  PROCESS SO IMPLEMENTATION COULD BE DONE?
• HERE THE PARTIES MET 9 TIMES, MORE THAN THE
  REQUIRED 90 DAYS

16
POLICY DETERMINATIONS

• THE UNION WANTS THE BOARD TO FORCE THE DISTRICT
  TO BARGAIN THE UNDERLYING POLICY DECISION

17
MEMBER GAMSONS DISSENT

• THE PROCESS IS AN EMPTY SHELLA BODY WITHOUT A
  HEART
• THE MAJORITY ALLOWS FOR THE MECHANICAL PLODDING
  THROUGH THE PROCESS WITHOUT REALLY REQUIRING THAT
  BARGAINING TAKE PLACE

18
GAMSONS GRIPE

• THE DISTRICT ENTERED BARGAINING WITH ITS
  DECISION ALREADY MADE, IT FAILED TO PROPOSE OR
  SERIOUSLY CONSIDER REASONABLE ALTERNATIVES ITS
  PROPOSAL WAS HARSH AND PREDICTABLY UNACCEPTABLE
  AND IT WITHHELD ANY COMPROMISE UNTIL THE LAST
  MINUTE

19
WHEN THE DISTRICT MADE UP ITS MIND

• EVIDENCE IS CLEAR ITS MIND WAS MADE UP PRIOR TO
  BARGAINING
• THUS THERE WAS NO BARGAINING
• GOLDSCMIDT SAID, THE SCHOOL BOARD DECIDED THAT
  CONTRACTING OUT WAS THE AVENUE TO MAKE THESE
  SAVINGS.

20
BAD FAITH AND THE HARSH PROPOSAL

• UNUSUALLY HARSH PROPOSALS ARE ANOTHER INDICATION
  OF BAD FAITH
• THE DISTRICT COULD HAVE EXPLORED ALTERNATIVES,
  BUT DIDNT

21
(No Transcript)
22
NLRB v. AMERICAN NATIONAL INSURANCE

• 1952
• US SUPREME COURT
• CHIEF JUSTICE VINSON

23
THE PROPOSAL AT ISSUE

• MANAGEMENT PROPOSES THAT IT NOT BE REQUIRED TO
  ARBITRATE CERTAIN ITEMS
• THE ITEMS WERE TO PROMOTE, DEMOTE, DISCHARGE,
  DISCIPLINE FOR CAUSE, TO MAINTAIN DISCIPLINE AND
  EFFICIENCY OF EMPLOYEES, AND TO DETERMINE
  SCHEDULES OF WORK
• FURTHER THAT THEY HAVE COMPLETE DISCRETION OVER
  THESE ITEMS

24
IS THIS BARGAINING IN GOOD FAITH

• IF MANAGEMENT HAS SOLE PREROGATIVE OVER
  PROMOTION, DISCIPLINE AND SCHEDULING-WHAT IS THE
  POINT OF BARGAINING?

25
WOULD THIS BE A MANDATORY SUBJECT?

• THE XYZ MACHINE SHOP SHALL HAVE COMPLETE
  DISCRETION OVER ALL ASPECTS OF EMPLOYMENT OF
  MEMBERS OF THE XYZ EMPLOYEES, LOCAL 3

26
MANAGEMENT ACTIONS DURING BARGAINING WITHOUT THE
APPROVAL OF THE UNION

• ESTABLISHED A NEW NIGHT SHIFT
• A NEW SYSTEM OF LUNCH HOURS

27
UNION COUNTER PROPOSAL

• MAINTAINS THE RIGHT TO ARBITRATE DIFFERENCES
• COMPANY SAYS NO

28
ENTER THE NLRB

• UNION FILES A CHARGE
• NLRB PROSECUTES
• UNION WINS AT TRIAL AT NLRB
• THEY FIND THE MANAGEMENTS ACTIONS WERE IN BAD
  FAITH
• BUT THE NON-ARBITRATION PROPOSAL WAS NOT A PER SE
  VIOLATION

29
ON APPEAL TO FULL BOARD

• COMPANY DIDNT BARGAINING IN GOOD FAITH IN TRYING
  TO REACH AN AGREEMENT
• BUT PROPOSED MANAGEMENT FUNCTIONS CLAUSE AND
  ATTEMPTS TO AVOID ARBITRATION WERE A PER SE
  VIOLATION

30
POSITION OF THE COURT OF APPEALS

• REJECTED THE BOARDS POSITION REGARDING THE PER
  SE VIOLATION AND ADOPTS THE POSITION OF THE TRIAL
  EXAMINER
• NOR DO THEY FIND ON BALANCE THAT THE PROPOSAL WAS
  IN BAD FAITH
• BUT THE UNILATERAL CHANGE IS A VIOLATION

31
HISTORY OF THE ACT

• TAFT-HARTLEY ACT
• THERE WAS A CONCERN THAT THE WAGNER ACT REQUIRED
  CONCESSIONS AND CONCESSIONS
• THE LEGISLATIVE HISTORY IS CLEAR THAT THIS WAS
  NOT THE CASE
• THE BOARD IS NOT TO SIT IN JUDGMENT ON
  SUBSTANTIVE TERMS OF THE LABOR AGREEMENT

32
MANAGEMENT FUNCTION CLAUSES

• BOARDS POSITION IS THAT THEY ARE PERMISSIVE IN
  THAT THE UNION CAN AGREE TO THEM BUT THEY ARE NOT
  OBLIGATED TO
• COURT SEE THEM AS LEGALLY BARGAINED LIMITATIONS
  OF WHAT MANAGEMENT IS REQUIRED TO DO

33
THE BOARDS ROLE

• DONT GET INTO THE SUBSTANCE OF THE DEAL!

34
WHAT OF THE UNILATERAL IMPLEMENTATION

• CLEARLY THIS IS BAD FAITH BARGAINING AS THERE WAS
  NO BARGAINING TO CONCLUSION

35
THE DISSENT

• IN THIS CASE IT ISNT A MATTER OF EVALUATING
  WHETHER OR NOT THERE WAS BARGAINING IN GOOD FAITH
• MANAGEMENT BY TAKING SUBJECTS OFF THE TABLE WAS
  NOT BARGAINING AT ALL

36
BORG-WARNER

• US SUPREME COURT
• 1958
• JUSTICE BURTON

37
FACTS

• MANAGEMENT PROPOSALS
• THEY PROPOSED A RECOGNITION CLAUSE THAT CONTAINED
  ONLY THE LOCAL AFFILIATE OF THE NATIONAL UNION.
  THE NATIONAL UNION WAS ALSO CERTIFIED
• THEY ALSO PROPOSED A REQUIREMENT THAT THE
  BARGAINING UNIT VOTE BY SECRET BALLOT, THE FINAL
  OFFER OF MANAGEMENT IF THERE WAS AN IMPASSE

38
NLRB RULING

• THESE ARE NOT MANDATORY SUBJECTS UNDER 8(d)
• REMEDY IS TO PULL THE PROPOSALS

39
MANDATORY SUBJECTS

• ARE THOSE WHICH THE PARTIES ARE OBLIGATED TO
  DISCUSS
• IF THE SUBJECT IS NOT MANDATORY THERE IS NO
  REQUIREMENT TO DISCUSS THE TOPIC.
• ALTHOUGH THE PARTIES ARE FREE TO DISCUSS THE
  TOPIC IF THEY MUTUALLY CHOOSE TO

40
SUBJECTS INSISTED ON TO IMPASSE

• CAN BE SUBJECTS THAT ARE ONLY MANDATORY SUBJECTS,
  NOT PERMISSIVE SUBJECTS

41
BALLOT CLAUSES

• ALTERS THE STATUTORY RELATIONSHIP BETWEEN THE
  PARTIES
• THE RELATIONSHIP BY-PASSES THE UNION AND CAUSES
  THE EMPLOYER TO DEAL DIRECTLY WITH THE MEMBERSHIP

42
RECOGNITION CLAUSES

• AGAIN, ALTERS THE STATUTORY RELATIONSHIP IF THE
  EMPLOYER CAN NEGOTIATE AWAY A CERTIFICATION
  ACHIEVED THROUGH THE ELECTION PROCESS

43
HOLDING

• BOTH CLAUSES ARE NOT MANDATORY

44
FIBERBOARD

• US SUPREME COURT
• CHIEF JUSTICE WARREN

45
FACTS

• COMPANY DECIDED TO CONTRACT OUT ITS MAINTENANCE
  OPERATIONS AT THE CONCLUSION OF THE CURRENT LABOR
  AGREEMENT, ELIMINATING ALL JOBS FROM THE
  BARGAINING UNIT AND REPLACING THEM WITH
  INDEPENDENT CONTRACTORS

46
COMPANY POSITION

• BARGAINING WOULD BE POINTLESS SINCE ALL JOBS WILL
  BE GONE

47
TRIAL EXAMINER AND NLRB

• BOTH AGREE THE COMPANYS MOTIVES WERE ECONOMIC
  AND NOT ANTI-UNION IN NATURE
• BUT THERE IS STILL THE OBLIGATION TO BARGAIN AND
  THE COMPANY DID NOT DO THIS-UNION WINS

48
COURT OF APPEALS

• AGREES WITH NLRB
• ENFORCES THE ORDER

49
THE COURT REASONS

• THE TOPIC OF CONTRACTING OUT IS A MANDATORY
  SUBJECT AS IT IS PART OF WORKING CONDITIONS
• THE LETTING OF THE CONTRACT WOULD NOT HAVE
  ALTERED THE COMPANYS BASIC OPERATION

50
REMEDY

• A BACK PAY REMEDY IS WITHIN THE REMEDIAL POWERS
  OF THE BOARD TO EFFECTUATE THE ACT

51
FIRST NATIONAL MAINTENANCE

• US SUPREME COURT
• JUSTICE BLACKMUN

52
FACTS

• COMPANY CLEANED BUILDINGS
• UNION ORGANIZED A PARTICULAR LOCATION
• SHORTLY AFTER ORGANIZATION THE CONTRACTING
  NURSING HOME CANCELLED THE CONTRACT WITH THE
  COMPANY
• THE UNION WANTS TO BARGAIN
• THE COMPANY SAYS NO

53
WHAT THE UNION WANTS

• TO BARGAIN THE DECISION OF CLOSING DOWN THE
  OPERATION

54
TRIAL EXAMINERS DECISION

• EMPLOYER MUST BARGAIN THE DECISION AND THE IMPACT
• FAILURE TO BARGAIN IS A PER SE VIOLATION AS THIS
  RELATED TO MANDATORY SUBJECTS
• REMEDY-PAY THE EMPLOYEES BACK PAY

55
NLRB ON APPEAL TO FULL BOARD

• AGREES WITH TRIAL EXAMINER
• ADDS THAT IF THE OPERATION AT THE NURSING HOME
  RESTARTS THE EMPLOYEES WILL BE OFFERED JOBS

56
COURT OF APPEALS

• UNION STILL WINS, BUT THERE IS NO PER SE
  VIOLATION
• THERE IS CREATED A PRESUMPTION OF BARGAINING THAT
  CAN BE REBUTTED BY SHOWING THAT SUCH BARGAINING
  WOULDNT SERVE THE PURPOSE OF THE ACT
• SUCH AS THAT BARGAINING WOULD BE FUTILE

57
THE ROLE OF THE UNION ACCORDING TO THE COURT

• NOT A PARTNER IN BUSINESS OPERATIONS
• CERTAIN THINGS ARE MANAGEMENTS RIGHT TO MANAGE
• CHANGING THE SCOPE OF THE ENTERPRISE IS A
  MANAGEMENT RIGHT EVEN THOUGH IT AFFECTS WAGES
• A BIT OF JUDICIAL ACTIVISM PERHAPS?

58
PARTIAL PLANT CLOSURE

• MANAGEMENT MUST HAVE THE RIGHT TO MAKE THIS
  ESSENTIAL DETERMINATION WITHOUT REFERENCE TO THE
  UNION
• THEY ARE ALTERING THEIR BASIC OPERATIONUNLIKE
  FIBERBOARD

59
WHAT ARE THE UNIONS RIGHTS IN A PARTIAL CLOSURE?

• TO BARGAIN THE EFFECTS OF THE CLOSURE
• ENSURES THAT UNION HAS ACCESS TO INFORMATION THAT
  WILL PROVIDE EVIDENCE THAT THE PARTIAL CLOSURE IS
  NOT FOR THE WRONG REASONS

60
TACTICS OF DELAY

• THE COURT IS CONCERNED BY GIVING THE UNION TO THE
  RIGHT TO BARGAIN THE DECISION THEY ARE GIVEN THE
  OPPORTUNITY TO DELAY THE LEGITIMATE DECISION OF
  MANAGEMENT
• OREGONS 90 DAY RULE FOR EXPEDITED BARGAINING

61
LABOR BOARD v. INSURANCE AGENTS

• 361 U.S. 477 (1960)

62
WHAT LAW ARE WE DISCUSSING HERE?

• NLRB
• BARGAINING IN BAD FAITH (8)(b)(3)

63
WHAT DID THE UNION DO TO ANGER THE COMPANY?

• IT WASNT ACTIONS AT THE BARGAINING TABLE
• THE WORK WITHOUT A CONTRACT CAMPAIGN
• REFUSAL TO SOLICIT NEW BUSINESS
• REFUSAL TO COMPLY WITH REPORTING PROCEDURES
• REPORTING LATE FOR WORK
• REFUSING TO PERFORM CUSTOMARY DUTIES
• ENGAGING IN SIT-INS

64
WHAT ELSE DID THE UNION DO?

• LEAVING AT NOON AS A GROUP
• NOT GOING TO CONFERENCES
• PICKETING
• LEAFLETING
• PETITIONS
• MASS DEMONSTRATIONS

65
WHAT DID THE NLRB DO?

• THEY DIDNT LIKE THE ACTIVITIES
• THEY RULED THAT WAY ON THE PERSONAL PRODUCTS CASE
• THEY WERE OVERRULED BY THE COURT OF APPEALS
• SO, WHAT THEY SAY LETS DO IT AGAIN
• THEY STILL THINK THIS IS BARGAINING IN BAD FAITH

66
WHAT WAS THE LEGISLATIVE HISTORY?

• SENATOR WAGNER (OF WAGNER ACT FAME) BELIEVED THE
  DUTY TO BARGAIN IN GOOD FAITH WAS INHERENT
• CONGRESS CONCLUDED THAT THE DUTY TO BARGAIN HAD
  TO BE A MATTER OF STATUTORY EXPRESSION IN 1947

67
HOW DOES JUSTICE BRENNAN VIEW THE DUTY TO BARGAIN
IN GOOD FAITH?

• AS THE COROLLARY TO MANAGEMENTS DUTY TO
  RECOGNIZE THE UNION
• IS THIS ANY DIFFERENT FROM WAGNERS VIEW IN THE
  LEGISLATATIVE PROCESS

68
WHAT IS THE HOLDING LABOR BOARD v.
CROMPTON-HIGHLAND MILLS INC.?

• AN EMPLOYERS UNILATERAL WAGE INCREASE DURING
  BARGAINING SUBVERTS THE UNIONS POSITION AS
  REPRESENTATIVE OF THE EMPLOYEES AND IS A ULP.

69
WHAT IS THE HOLDING INHEINZ CO. v. LABOR BOARD?

• TAKE IT OR LEAVE IT ISNT GOOD ENOUGH
• THERE MUST BE A DESIRE TO REACH AN AGREEMENT

70
WHAT IS THE PRACTICAL TENSION THAT BRENNAN
DESCRIBES?

• THE DESIRE TO REACH AGREEMENT
• PRINCIPAL THAT PARTIES DONT HAVE TO AGREE ON ANY
  SPECIFIC TERM

71
WHAT WERE THE CONGRESSIONAL CONCERNS IN 1947 AND
WHY DOES IT MATTER?

• CONCERN BY CONGRESSIONAL REPUBLICANS THAT THE
  BOARD HAD GIVEN TO MUCH TO THE UNIONS
• GOOD FAITH BARGAINING BECAME A ULP TO REIGN IN
  THE UNIONS (TAFT-HARTLEY)
• MADE UNIONS RESPONSIBLE FOR ULPs

72
WHAT DOES GOOD FAITH DO?

• NARROWS ISSUES
• MAKING REAL DEMANDS CLEAR
• ENCOURAGE GIVE AND TAKE
• WIDE LATITUDE UNRESTRICTED BY GOVERNMENTAL
  REGULATION

73
WHAT IS THE NATIONAL LABOR POLICY?

• THE OBLIGATION TO BARGAIN IN GOOD FAITH IS
  COMPATIBLE WITH THE USE OF ECONOMIC WEAPONS
• ECONOMIC FORCE IS THE PRIME MOTIVE TO REACH AN
  AGREEMENT
• COLLECTIVE BARGAINING IS CURIOUSLY AMBIVALENT-
  A BRUTE CONTEST OF ECONOMIC POWER SOMEWHAT
  MASKED BY POLITE MANNERS AND VOLUMINIOUS
  STATISTICS ARCHIBALD COX
• GOVERNMENT SHOULDNT BE CONCERNED WITH THE
  RESULTS OF COLLECTIVE BARGAINING

74
WHAT IS THE ROLE OF THE BOARD?

• THE BOARD SHOULD NOT EXERCISE POWER OVER THE
  PARTIES USE OF ECONOMIC POWER
• THE BOARD SHOULD REGULATE WHAT THEY DO AT THE
  TABLE.
• THEIR ROLE IS NOT TO EQUALIZE BARGAINING POWER

75
ASSUME THAT THE UNION ACTIVITY HERE IS NOT
PROTECTED ACTIVITY, WHAT EFFECT ON BARGAINING?

• THERE IS NONE
• BARGAINING IN GOOD FAITH IS BARGAINING IN GOOD
  FAITH
• THE EMPLOYER IS ABLE TO RESORT TO SELF HELP
• CONGRESS NEVER INTENDED TO PRECLUDE EITHER PARTY
  FROM SELF HELP
• THE USE OF ECONOMIC POWER BY PARTIES IS NOT AN
  EXPECPTION BUT PART AND PARCEL TO THE SYSTEM

76
IS THE DIFFERENCE BETWEEN A TOTAL STRIKE AND A
TRADITIONAL STRIKE MEANINGFUL UNDER THE LAW?

• NO, THEY ARE OF NO DIFFERENCE
• BOARD MAKES MORAL DECISION THAT THE COURT WILL
  NOT
• IT IS MERELY A MATTER OF GOOD FAITH BARGAINING