Intercultural Human Rights Law Review

First Page



This essay will discuss ways in which that duty of good faith bargaining is enforced and how a series of decisions by the courts and the National Labor Relations Board designed to increase employer power and flexibility have inadvertently encouraged and compelled employers to bargain in good faith by conditioning use of their most powerful weapons on their participation in good faith bargaining. The presence of economic weapons held in reserve is a powerful negotiating lever and an employer which has forfeited the ability to use weapons such a permanent striker replacement, lockout, and unilateral change will have substantially less leverage at the bargaining table and risk economic peril if it seeks to use these tools without having bargained in good faith. Because the law of good faith bargaining is complex, nuanced and difficult to define at the margins, this "reward" system also discourages borderline bargaining behavior. This essay will first provide an introduction to legal rules and concepts governing private sector collective bargaining under the National Labor Relations Act. The union's status as exclusive representative requires the employer to bargain solely with the union that represents a majority of employees in the relevant bargaining unit. Exclusive representative status gives the union authority to bind all employees in the unit, whether union members or not, to the terms of any resultant collective bargaining agreement. The statutory requirement of good faith bargaining applicable to both employers and unions will be explored as will the component concept of mandatory and permissive subjects of bargaining, a courtcreated construct that defines and limits the range of employmentrelated topics over which the parties are compelled to bargain in good faith. This essay will then discuss the parties' use of economic weapons during bargaining and the importance of those employer weapons which are conditioned on good faith bargaining such as unilateral changes to working conditions, permanently replacing striking employees, locking out employees to inflict bargaining pressure and even withdrawing recognition from unions which have provably lost employee majority support. Finally, the essay will demonstrate the practical effect of conditioning employer use of economic weapons, such as unilateral change, permanent replacement of strikers, locking out unit employees and withdrawal of recognition on good faith bargaining. Employers who wish to retain the opportunity to use or threaten to use these weapons, whether for bargaining leverage or actual use, will have to come to the bargaining table, stay there, provide the union information it needs for bargaining and, hopefully, participate in honest communication and an exchange of proposals designed to help the parties reach successful agreement and maintain labor peace. Although it would be naive to expect such positive results in every case, the hope is that a regime that requires careful listening, respectful responses and discussions, and the submission of legitimate counterproposals may lead to solutions that meet the needs of all parties and foster labor peace without the need for strike or lockout.