Unfair Labor Practices: the Employer’s Duty to Bargain

The second of a series of articles about the basics of labor law.

Considering the MLBPA is unlikely to commit violations of the law during the ongoing collective bargaining since there is no strategic advantage for the Union to avoid bargaining, most of the questions we will visit involve Section 8(a) of the NLRA, Employer Unfair Labor Practices. There are parallel sections of the law in Section 8(b) and if there is any real interest I will explain them.

I will only give the definitions of the first five, since they are less likely   to occur, and then go into Section 8(a)(5) in more detail since questions related   to 8(a)(5) have already been raised in the proposed contraction plan, and since   misjudgement of 8(a)(5) by the owners won the last strike for the players.

Section 8 (a) it shall be an Unfair Labor Practice for an employer-

(1) to interfere with, retrain, or coerce employees in the exercise of the   rights guaranteed in Section 7;

Section 7 provides employees rights to engage in protected concerted activity,   or refrain there from. Basically, these are the rights to form, join, and participate   in a union, or not to.

(2) to dominate or interfere with the formation or administration of any   labor organization or contribute financial or other support to it;

This it the prohibition against employer dominated unions that were   prevalent as a union avoidance strategy earlier in history.

(3) by discriminating in regard to hire or tenure of employment or any term   or condition of employment to encourage or discourage membership in any labor   organization;

This is a prohibition against the Employer discriminating against those who   chose to be union members, or for that matter, those who chose not to.

(4) to discharge or otherwise discriminate against an employee because he   has filed charges or given testimony under this Act;

This protects the sovereignty of the Act by protecting employees who engage   in whistleblowing.

(5) to refuse to bargain collectively with the representatives of his employees,   subject to the provisions of Section 9(a).

Section 9(a) provides that when a bargaining representative is properly   selected, and without going in to detail, the MLBPA has been, that Union   shall be the exclusive representative of all the employees for the purposes   of collective bargaining in respect to rates of pay, wages, hours of   employment, or other conditions of employment.

These issues are more commonly referred to as wages, hours, and working   conditions, or the mandatory subjects of bargaining.

The Supreme Court, in NLRB v. Wooster Division of Borg-Warner Corp., 356   U.S. 342, (1958), divided the subjects of bargaining into three categories:   mandatory, those which we defined above, permissive, and illegal. The Court   endorsed the idea that it would be an Unfair Labor Practice to insist that   an illegal subject be part of a collective bargaining agreement or to use   economic warfare, such as a lockout or strike in order to force such a   demand. Those illegal subjects have been found to include a closed shop   agreement, and violations of other labor and employment laws, like   violations of Title VII of the 1964 Civil Rights Act that protects against   discrimination based upon race, sex, color, creed, religion, and national   origin.

The permissive distinction is important because a party must withdraw all   permissive subjects prior to declaring an impasse. I will get into impasse   in a later article. Further, permissive subjects must be removed from the   bargaining table if one party does not wish to negotiate over the subject.   Items that have been found to be permissive subjects include: prices,   internal union governance, ratification procedures, who represents the   parties in bargaining, vote procedures before strikes, and the scope of the   bargaining unit.

The mandatory subjects are the subjects that may be bargained to impasse and   may lead to unilateral implementation of the final offer by the Employer,   something Major League Baseball attempted to do during the last round of   negotiations in 1994-5.

Wages includes compensation of any kind. Hours includes: schedules,   breaks, shifts, and overtime. This is why the MLBPA always asserts that it   has a right to negotiate over interleague play. It falls under work   schedule. The same argument may be raised by the Union in attempting to   block contraction. The media calls this participation over the schedule   "final approval by the union." But, it really means that the union   may ask   to negotiate the schedule, and ask for management concessions in other areas   to approve the schedule that management has proposed. Other terms and   conditions of employment has been found to include: health and safety, pace   and difficulty, discipline and employee behavior, and certain aspects of   capital redeployment.

My next article will deal with this major issue of capital redeployment and   plant closure decisions and how the law may be interpreted in the current   contraction proposal. As you know the owners claim they have the unilateral   right to fold franchises, but admit they must bargain over the aftereffects,   such as dispersing players and the union has already filed a grievance under   the previous agreement related to the owners’ late notice to the players of   the contraction decision. Meanwhile, the Union is preparing their arguments   related to whether or not contraction falls under the mandatory subjects of   bargaining.

© 2001 Eugene Freedman