Masonry Magazine September 1977 Page. 17
MCAA
legal
corner
SCOPE OF DUTY
TO BARGAIN
By GEORGE L. PLUMB
MCAA Legal Counsel
Under Section 8(d) of the Taft-Hartley Act, labor and management are required to bargain in good faith and with respect to "wages, hours and other terms and conditions of employment."
It is a difficult issue in refusal to bargain cases to determine whether a party is negotiating in good faith, since this requires a subjective evaluation of the party's attitude as reflected in his course of conduct during negotiations.
The NLRB and the Courts have ruled, however, that the "good faith" issue is irrelevant in certain situations; thus. the following conduct has been held to constitute a "per se" violation of the bargaining duty:
A refusal to discuss a subject within the area of so-called mandatory bargaining over "wages, hours and other terms and conditions of employment."
A refusal to meet a reasonable request for data necessary to an intelligent discussion of a mandatory bargaining topic. This is viewed as removing the subject from the bargaining table just as effectively as an outright refusal to discuss the matter.
Insistence upon including in the contract a subject that is outside the scope of mandatory bargaining.
With the above exception, the inquiry in refusal to bargain cases centers upon whether a party's conduct throughout negotiations warrants an inference that he was bargaining without a sincere desire to reach an agreement. Some employer conduct may strongly support an inference of bad faith bargaining such as failing to give negotiators sufficient authority to bind the employer, refusing to sign an agreement already reached, or unilaterally granting wage increases or changing other benefits without consulting with a union.
The United States Supreme Court has recognized that there are three categories of bargaining proposals, and it has established three sets of rules for them. They are:
1) Illegal Subjects-These are the topics that would be illegal and forbidden under the Labor Management and Relations Act, such as a proposal for a closed shop. Bargaining on these subjects may not be required and they may not be included in a contract even if the other party agrees.
2) Mandatory Subjects-Under Section 8(d) of the Taft-Hartley Act. both employers and unions are required to bargain in good faith with respect to wages, hours and other conditions of employment. The parties must bargain on such proposals, and the parties may insist on their inclusion in any contract executed.
3) Voluntary Subjects-These are the topics that fall outside the mandatory category of "wages, hours and other conditions of employment". They may be placed on the bargaining table for voluntary bargaining and agreement. The other party may not be required either to bargain on them or to agree to their inclusion in the contract. Insistence on them as a condition to the execution of the contract will be a violation of the bargaining duty.
Voluntary Bargaining Subjects
Examples of voluntary bargaining subjects are:
1) Industry Promotion Fund-It is illegal for either management or a union to demand to the point of reaching an impasse that an industry promotion fund be established, since it is not related to wages, hours or conditions of employment.
2) Masonry Advancement Programs-These programs providing funds to assist an association of contractors to further the interest of the industry are also voluntary bargaining subjects.
3) Performance Bonds-Performance bonds to be posted by employer are not mandatory subjects of bargaining. according to a 1976 NLRB decision.
4) Strike Insurance-Strike insurance obtained by employer is not a mandatory subject of bargaining.
5) Interest Arbitration Clause-A union violated the Taft-Hartley Act when it insisted to the point of impasse