Understanding the Three (3) Types of Subjects for Bargaining Under the NLRA
One of the Most Important Topics to Understand in Labor Negotiations
Introduction
The National Labor Relations Act (NLRA), enacted in 1935, establishes the framework for collective bargaining between employers and labor unions in the United States. A central aspect of this framework is the classification of bargaining subjects into three categories: mandatory, permissive, and illegal. These categories determine the obligations of parties during negotiations, the scope of permissible discussions, and the potential for unfair labor practices (ULPs) if rules are violated.
Mandatory subjects require good-faith bargaining, permissive subjects allow for voluntary discussion without compulsion, and illegal subjects are prohibited entirely. This classification stems from Section 8(d) of the NLRA, which mandates bargaining over "wages, hours, and other terms and conditions of employment." Understanding these distinctions is essential for effective negotiations, as misclassification can lead to disputes, delays, or legal challenges.
This article provides a detailed analysis of each type, including their relation to bargaining proposals, potential ULP charges, resolution processes, penalties, and strategies for avoidance. Examples are included to illustrate concepts without referencing specific entities. Additionally, it incorporates relevant information on related topics and offers guidance tailored to construction unions preparing for bargaining.
Mandatory Subjects of Bargaining
Detailed Analysis
Mandatory subjects encompass matters directly related to wages, hours, and other terms and conditions of employment for current employees in the bargaining unit. These are core issues that affect the daily working lives of represented workers. The NLRA requires both employers and unions to bargain in good faith over these subjects, meaning they must meet at reasonable times, exchange relevant information, and make a sincere effort to reach agreement. However, good faith does not require concessions or agreement on any point.
The scope of mandatory subjects is interpreted broadly by the National Labor Relations Board (NLRB) and courts, often depending on the context. For instance, decisions impacting employment conditions, such as subcontracting that affects job security, may fall under this category if they have a significant impact on the unit.
Relation to Bargaining Proposals
Proposals on mandatory subjects must be discussed if raised by either party. A party cannot unilaterally implement changes to these subjects without bargaining to impasse—a point where further negotiation appears futile. Impasse allows implementation of the last offer, but only after genuine efforts to negotiate.
Potential ULP Charges
ULP charges may arise if one party refuses to bargain over a mandatory subject. For employers, this violates Section 8(a)(5) of the NLRA; for unions, it breaches Section 8(b)(3). Examples include an employer unilaterally altering work hours without negotiation or a union demanding concessions without engaging in dialogue. Charges can be filed by either party against the other.
Resolution of Charges
ULP charges are filed with the NLRB regional office within six months of the alleged violation. The NLRB investigates, and if merit is found, issues a complaint. An administrative law judge (ALJ) conducts a hearing, after which the case may be appealed to the full NLRB and then to federal courts. Resolutions often involve settlements, but formal decisions can take months or years.
Penalties
Penalties are remedial, aimed at restoring the status quo. They may include orders to cease violations, backpay for affected employees, reinstatement, or posting notices. In severe cases, the NLRB may seek court injunctions. There are no punitive damages under the NLRA, but repeated violations can lead to contempt proceedings.
How to Avoid Problems During Bargaining
To prevent issues, parties should clearly identify mandatory subjects early in negotiations through agenda-setting meetings. Maintain detailed records of discussions to demonstrate good faith. If impasse is approached, consider mediation via the Federal Mediation and Conciliation Service (FMCS). Training negotiators on NLRA requirements can also mitigate risks.
Examples
Wages and overtime pay structures.
Shift schedules and break policies.
Grievance procedures for resolving workplace disputes.
Health and safety protocols directly affecting employees.
Permissive Subjects of Bargaining
Detailed Analysis
Permissive subjects involve matters not directly tied to wages, hours, or terms and conditions of employment for current unit members. These are optional topics that parties may discuss if mutually agreed upon, but neither can insist on bargaining over them to the point of impasse. The NLRB classifies items like internal union governance or matters affecting non-unit employees (e.g., retirees) as permissive. This category allows flexibility for broader agreements but protects against coercion on non-essential issues.
Relation to Bargaining Proposals
Proposals on permissive subjects can be introduced voluntarily, often to build rapport or address long-term concerns. However, if one party objects, the topic must be dropped. Insisting on a permissive subject as a condition for agreement on mandatory ones constitutes bad-faith bargaining.
Potential ULP Charges
Charges typically stem from one party insisting to impasse on a permissive subject, violating Sections 8(a)(5) or 8(b)(3). For example, an employer might unlawfully condition a wage agreement on union acceptance of a permissive clause, or a union could refuse to proceed without discussion of non-unit matters. Either party can file charges against the other.
Resolution of Charges
The process mirrors that for mandatory subjects: filing with the NLRB, investigation, potential hearing, and appeals. Many cases resolve through informal settlements, emphasizing the importance of early intervention.
Penalties
Remedies focus on correction, such as withdrawing the insisted-upon proposal, resuming bargaining, or compensating for losses (e.g., backpay if delays caused economic harm). Notices and cease-and-desist orders are common.
How to Avoid Problems During Bargaining
Distinguish permissive from mandatory subjects in pre-bargaining preparation using NLRB precedents. Propose permissive items as "non-binding" discussions to gauge interest without pressure. If resistance arises, pivot to mandatory topics. Legal counsel review of proposals can help identify risks.
Examples
Benefits for retired employees.
Selection of bargaining representatives.
Settlement terms for pending ULP charges.
Expansion of the bargaining unit scope.
Illegal Subjects of Bargaining
Detailed Analysis
Illegal subjects include proposals that violate federal or state laws, the NLRA itself, or public policy. These cannot be bargained over, included in agreements, or implemented, as they undermine the Act's protections against discrimination, coercion, or unfair practices. The NLRB strictly enforces this category to maintain equity in labor relations.
Relation to Bargaining Proposals
Any proposal involving an illegal subject must be rejected outright. Even discussing or agreeing to such terms can invalidate portions of a contract or lead to enforcement issues.
Potential ULP Charges
Introducing or insisting on an illegal subject can result in ULP charges under Sections 8(a)(1), 8(a)(5), 8(b)(1), or 8(b)(3), depending on the violation. For instance, an employer proposing discriminatory hiring preferences breaches the Act, or a union demanding unlawful union-security clauses. Charges can originate from either party or affected individuals.
Resolution of Charges
Resolution follows the standard NLRB procedure: timely filing, investigation, complaint issuance if warranted, ALJ hearing, and appeals. Illegal subjects often lead to swift action due to their clear violations.
Penalties
In addition to standard remedies like voiding illegal clauses, penalties may include backpay, reinstatement, or fines in extreme cases. The NLRB can also refer matters to other agencies if broader laws (e.g., civil rights) are implicated.
How to Avoid Problems During Bargaining
Conduct thorough legal reviews of all proposals before tabling them. Educate teams on prohibited topics via training sessions. If an illegal proposal arises, document the rejection and redirect to lawful subjects. Consulting NLRB guidance materials preemptively is advisable.
Examples
Closed-shop provisions requiring union membership as a hiring condition.
Discriminatory clauses based on race, gender, or other protected characteristics.
Hot-cargo agreements where unions refuse to handle certain goods.
Provisions granting superseniority to union officials beyond legal allowances.
Other Important or Relevant Information
The classification of subjects can evolve based on NLRB decisions and court rulings, so staying informed through official resources is crucial. For instance, certain managerial decisions (e.g., plant relocation) may shift from permissive to mandatory if they significantly impact employment. Additionally, during bargaining, parties must provide relevant information upon request for mandatory subjects, but not for permissive ones. Economic strikes over mandatory subjects are protected, whereas strikes over permissive or illegal topics may not be.
The NLRA applies to most private-sector employers, excluding public entities and certain industries like railroads. In multi-employer bargaining, common in some sectors, the same rules apply but with added complexity in group dynamics.
Guidance for Construction Unions in Preparing for Bargaining and Negotiations
Construction unions often engage in project-specific or multi-employer negotiations, where distinguishing bargaining subjects is vital to efficient outcomes. Begin preparations by assembling a bargaining committee with legal expertise to classify potential proposals accurately—focus on mandatory subjects like prevailing wages, apprenticeship programs, and safety standards, which are central to the industry.
Develop a comprehensive bargaining strategy: Inventory current contract terms, survey members for priorities, and anticipate employer counterproposals. Use mock negotiations to practice handling permissive subjects, such as subcontractor clauses, without insisting to impasse. To avoid ULPs, document all communications and seek FMCS mediation early if tensions rise.
In the construction context, emphasize health and safety as mandatory, given the high-risk environment, and prepare data to support proposals. Review NLRB case law on industry-specific issues, like jurisdictional disputes, to identify illegal subjects. Finally, build alliances with other trades for stronger positions on shared mandatory topics, ensuring compliance with antitrust laws.
By adhering to these principles, construction unions can foster productive negotiations, minimize legal risks, and secure agreements that enhance worker protections and industry stability.