Monday, August 17, 2015

No Is A Valid Response

Some may remember the “Just Say No to Drugs” campaign of Nancy Reagan’s in the mid-80’s but, is just saying no at the bargaining table an  unfair labor practice? 

Collective bargaining is all about trading and persuading. Part of achieving success in bargaining is to either understand why a proposal is so important to the other side and then using that to leverage something your side wants, or by getting the other side to explain why a proposal is so important, you can easily debunk their reasoning and use that as a basis for rejecting the proposal.  A favorite question of both management and labor when receiving a contract proposal is “Has this been a problem in the past?’ or “What is the basis for you rejecting this proposal?” The answers can be helpful in drilling down to what is important to the other side. So, when either side responds to a contract proposal with simply “No”, it tends to frustrate the other side because it provides no insight and feels like the other side is just being obstructionists.  

Recently the NLRB, which has had a pretty pro-union bent lately, ruled that an employer’s rejection, without further explanation, of a union’s proposal for union security and dues deduction, was not an unfair labor practice.  

The union had proposed what it characterized as fairly standard union security and dues deduction proposals in a first contract negotiation with the employer. Anyone who has read a number of collective bargaining agreements knows that these provisions are, in fact, fairly commonly seen in contracts. In any event, despite the parties conducting numerous negotiation sessions and despite agreeing on virtually every other provision of an agreement, the employer staunchly refused to agree to these two provisions and although once noting that after deducting dues the employees would earn around minimum wage, it refused to offer much of any other reason why. The union claimed that the employer was engaging in bad faith bargaining and filed an unfair labor practice. 

The NLRB found that the obligation to bargain in good faith “does not compel either party to agree to a proposal or require the making of a concession.” Before either union side or management takes that to mean that it can wholesale reject proposals without further discussion, the NLRB reiterated that  good faith is determined by a totality of the circumstances of bargaining. For evidence of whether the party had “a present intention to reach an agreement.” 

So, just saying no at the bargaining table is okay sometimes, but  don’t  overuse the privilege. While an employer (or a union for that matter) does not have to reach agreement on every issue in order to bargain in good faith, it does have to participate in bargaining with the intent of reaching an agreement. The best practice for employer and unions alike, when rejecting a proposal, is to clearly state the reason for the rejection and move on to other issues. 

As we have reminded readers in the past, while NLRB decisions are not binding on public employers in Illinois, the state’s public labor relations board is modeled after the national labor relations law and that board relies heavily on NLRB rulings in making its decisions.