Organizing and election procedure, bargaining units and appropriate scope, the duty to bargain in good faith, unfair labor practices on both sides, protected concerted activity, strikes, lockouts and replacement, and grievance arbitration.
Section 301 of the Labor Management Relations Act gives federal courts jurisdiction over suits for violation of contracts between an employer and a labor organization, and the law built on it favors arbitration. A court orders arbitration unless it can say with positive assurance that the clause does not cover the dispute. An award stands if it draws its essence from the agreement.
A strike over wages, hours or working conditions is an economic strike. The employer may hire permanent replacements, and strikers are entitled not to displace them but to recall as substantially equivalent vacancies arise. A strike caused or prolonged by an employer's unfair labor practices is different: those strikers are entitled to reinstatement on an unconditional offer to return, even if replacements must be discharged, with back pay running if reinstatement is not made promptly.
Section 8(d) defines bargaining as the mutual obligation to meet at reasonable times and confer in good faith over wages, hours and other terms of employment, while compelling neither agreement nor concession. A party seeking to modify a contract must give sixty days' written notice and notify federal and state mediation agencies within thirty days after it. On genuine impasse an employer may implement its pre-impasse offers.
The proviso to Section 8(a)(3) permits an agreement requiring membership as a condition of employment no earlier than the thirtieth day after hire, and the seventh day in construction. Membership means only periodic dues and initiation fees. Section 302 permits deduction only under a written assignment not irrevocable for more than one year or beyond the contract's termination. Section 14(b) lets a state forbid the clause.
A buyer becomes a successor where there is substantial continuity in the business and a majority of its employees in an appropriate unit came from the predecessor. A successor must recognize and bargain with the incumbent representative but is not bound by the predecessor's agreement and may generally set initial terms. That freedom is lost where the buyer has made retention perfectly clear.
Section 8(d) makes wages, hours and other terms and conditions of employment the mandatory subjects of bargaining. A party must bargain over a mandatory subject on request and may insist on its position to impasse. A permissive subject may be proposed but never made a condition of agreement, and insistence to impasse on one is itself a refusal to bargain. An illegal subject may not be agreed to at all, and a clause containing one is unenforceable however freely it was accepted.
Section 9(c) of the National Labor Relations Act lets employees, a labor organization or an employer file a representation petition with a regional office. A petition seeking or ending representation must be accompanied by a showing of interest from at least thirty percent of the employees in the unit sought. The showing is administrative, confidential and not litigable. No election may be directed in a unit where a valid election was held in the preceding twelve months.
An employee who reasonably believes an interview may result in discipline may request that a union representative attend. The right is grounded in the Section 7 guarantee of concerted activity, not in any express clause. The employer need not volunteer it, but on request must grant representation, end the interview, or offer the employee a choice between the two. Denial violates Section 8(a)(1).
The duty to bargain in good faith carries a duty to furnish information the other party needs to bargain and to administer the agreement. Information about the terms of employment of unit employees is presumptively relevant and needs no justification. Information outside the unit requires an objective factual basis. A confidentiality interest obliges the holder to raise it promptly and to bargain an accommodation.
Section 9(b) of the National Labor Relations Act directs the Board to decide in each case the unit appropriate for collective bargaining. The test is whether the employees share a community of interest, judged by skills, functions, supervision, contact and interchange, and terms of employment. The unit need only be appropriate, not the most appropriate. Supervisors, guards paired with other employees, and several categories excluded from the definition of employee cannot be placed in a unit.
An employer may withhold work to bring economic pressure in support of a legitimate bargaining position, and members of a multiemployer unit may lock out in answer to a strike against one of them. Lawfulness is judged by separating conduct inherently destructive of employee rights from conduct excused by a substantial business justification. Temporary replacements are generally permitted; permanent ones are not.
