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
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
(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
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
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
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
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
© 2001 Eugene Freedman
Posted: November 19, 2001 at 06:00 AM | 0 comment(s)
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