Employment contract, employment contract, collective agreement (name) The law of collective bargaining includes four fundamental points: collective bargaining allows employees and employers to voluntarily agree on a wide range of issues. Nevertheless, it is limited to some extent by federal and state laws. A collective agreement cannot contractually achieve what the law prohibits. For example, a union and an employer cannot use collective bargaining to deprive workers of rights they would otherwise enjoy under laws such as the Civil Rights Statutes (Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 pp. Ct. 1011, 39 L. Ed. 2d 147 ). Nor can collective bargaining be used to waive rights or obligations imposed by law on either party.
For example, an employer cannot use collective bargaining to lower the level of safety standards it must meet under the Occupational Health and Safety Act (29 U.S.C.A. §§ 651 et seq.). Moreover, the collective agreement is not purely voluntary. The failure of an agreement allows the other party to resort to certain legal tactics such as strikes and lockouts, to exert economic pressure and to enforce agreements. In addition, unlike commercial contracts, which are subject to state law, the collective agreement is almost exclusively subject to the Federal Labour Act, which determines the issues that require collective bargaining, the timing and nature of negotiations, as well as the consequences of a failure to properly negotiate or non-compliance with a collective agreement. Sections 8(a)(5) and 8(b)(3) of the NLRA define failure to bargain collectively as an unfair labor practice (29 U.S.C§ 158[a], [b]). The aggrieved party may file a complaint of unfair labour practices with the NLRB, which has the power to prevent or stop the conduct of unfair labour practices (Article 160). Obligation to negotiate in good faith During the negotiation process, the parties are not legally required to reach an agreement. However, you must negotiate in good faith (29 U.S.C.A. § 158[d]). Although good faith is a somewhat subjective concept, the courts will consider the full circumstances of the trial, including off-table conduct such as pressure and threats (NLRB v.
Billion Motors, 700 F.2d 454 [8th Cir. 1983]). Most authorities agree that an absolute refusal to negotiate constitutes bad faith (Wooster). A collective agreement is the ultimate goal of the collective bargaining process. As a general rule, the agreement defines salaries, hours, promotions, benefits and other conditions of employment, as well as the procedures for dealing with disputes arising therefrom. Since the collective agreement cannot solve all workplace problems that may arise in the future, unwritten customs and past practices, external law and informal agreements are just as important to the collective agreement as the written instrument itself. Once the NLRB has certified a union as the exclusive negotiator, the union enjoys an irrefutable presumption of majority support for one year (Case River Dyeing & Finishing Corp.c. NLRB, 482 U.S. 27, 107 pp. Ct.
2225, 96 L. Ed. 2d 22 ). During this year, the employer cannot refuse to negotiate with the union because the union does not represent the majority of workers. At the end of this year, the employer may rebut the presumption that the union represents the majority of workers, either by proving that the union does not actually have majority support or by having good faith doubts based on sufficient objective evidence that the union has lost majority support (NLRB v. Curtin Matheson Scientific, 494 U.S. 775, 110 p. Ct. 1542, 108 L. ed. 2d 801 ). In cases where the employer doubts that a union is supported by a majority, it may “anticipate” the recognition of the union by insisting that a collective agreement end at the end of the certification year (Rock-Tenn Co.c.
NLRB, 69 F.3d 803 [7th Cir. 1995]). However, a party`s insistence on a particular contractual term is not necessarily an unfair labour practice. The NLRB and the courts reviewing and enforcing their orders are not prepared to substitute their judgment for the judgment of the parties and will not evaluate the content of collective agreements (NLRB v. American National Insurance Co., 343 U.S. 395, 72 pp. Ct. 824, 96 L. Ed. 1027 ). Moreover, the use of “economic weapons” such as pressure tactics, pickets, and strikes to force concessions to bargain for concessions is not necessarily bad faith negotiation (NLRB v.
Insurance Agents` International Union, 361 U.S. 477, 80 pp. Ct. 419, 4 L. ed. 2d 454 ). .