Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 79E. Employer Bargaining ObligationAn employer and the representative of its employees, as designatedor selected by a majority of employees in an appropriateunit pursuant to Section 9(a), have a mutual obligation to bargainin good faith about wages, hours, and other terms and conditionsof employment. An employer or labor organization, respectively,violates Section 8(a)(5) or 8(b)(3) of the Act if it does not fulfillits bargaining obligation.1. Impasse Over Nonmandatory Bargaining SubjectIn Reichhold Chemicals, 58 the Board reconsidered a prior decision59and emphasized that in some cases the Board will considerthe content of a party's bargaining proposals in assessing the totalityof its conduct during negotiations. The majority stated,however, that it would not decide whether particular proposalsare either "acceptable" or "unacceptable" to a party. Instead, themajority held that "relying on the Board's cumulative institutionalexperience in administering the Act, we shall continue to examineproposals when appropriate and consider whether, on thebasis of objective factors, a demand is clearly designed to frustrateagreement on a collective-bargaining contract."- Turning to the merits of the case, the majority reaffirmed theBoard's prior finding that the employer's overall conduct—includingits insistence on a broad management-rights clause, anarrow grievance defmition, and a comprehensive no-strike provision—establishedthat the employer engaged in hard bargaining,rather than unlawful surface bargaining. The majority alsoaffirmed the Board's previous holding that the employer's proposalthat the union waive the right to engage in unfair laborpractice strikes is a mandatory subject of bargaining.Nevertheless, on further consideration, the majority reversedpart of the Board's earlier decision in the case and found that theemployer violated Section 8(a)(5) by insisting to impasse on anonmandatory subject of bargaining, i.e., a waiver of access toBoard processes that was part of the employer's proposed nostrikeclause. In addition to a waiver of employees' statutoryright to strike, including the right to strike in protest of employerunfair labor practices, the employer's proposed unauthorizedstrike clause sought to have employees forfeit their right to seekredress from the Board or other tribunal for discipline imposedunder the clause on strikers who are replaced. The majority decidedthat the future waiver of the right to Board access soughtin this case was not a mandatory subject of bargaining because itis contrary to a fundamental policy of the Act and is unrelated toterms and conditions of employment.88 288 NLRB No. 8 (Chairman Stephens and Members Babson and Cracraft; Member Johansen dissenting).59 277 NLRB 639 (1985).