Mandatory Bargaining

Union exclusive representation and the ensuing process of collective bargaining gives the union the right to negotiate with management the terms and conditions of employment. Employers are required by law to meet with the union and discuss its proposals in good faith, as long as the proposals are among the mandatory subjects of bargaining.

Mandatory subjects of bargaining are those labor topics that by law must be negotiated by labor and management when insisted upon by either party. In addition to wages and hours of work, mandatory subjects include fringe benefit programs, seniority, discipline and other issues related to employment. Union security arrangements are among mandated subjects. 17 

Unions customarily seek some form of guarantee that employees either become full union members or pay some representation fee (usually the equivalent of membership dues and initiation fees) to the union. Under the standard of good faith bargaining, employers will usually agree to these terms.18  Employers may consider union security provisions to be a no-cost issue item that can be traded for economic concessions of greater apparent value to the employer. The employer sometimes believes its business might be injured by rejecting the union demand. In either case, the employer becomes the enforcer for the payment of compulsory union dues because it will discharge an employee at the union’s request for a worker’s failure to pay dues according to the agreement. An employer can be charged with an unfair labor practice if it complies with a union request to discharge an employee, if the employer has reason to believe that the union failed to follow proper notification and fee objection procedures.

Bargaining in good faith requires the parties to meet at reasonable and convenient times; to meet with minds open to persuasion and a view toward reaching agreement; avoid "surface" bargaining, which occurs when parties present proposals on a "take it or leave it" basis; 19  and taking no employer actions designed to weaken the union’s status as the exclusive bargaining agent while negotiations are in progress.

"Good faith" is generally evaluated by assessing the compromises and concessions made by the parties during the negotiating period. 20  The employer’s duty includes the obligation to supply the union with information upon request that is "relevant and necessary" to allow the union agents to bargain intelligently and effectively. The employer is not compelled to surrender confidential or proprietary information such as its profits and losses, but it can be required to do so if it claims at the bargaining table that it is financially unable to meet the union’s demands.

The employer’s duty to bargain precludes it from taking "unilateral action," i.e., changing the terms or conditions of employment without the union’s accession. For example, this means that the employer cannot put a wage increase into effect until the union agrees, unless the employer has a demonstrated past practice of granting periodic pay raises as a matter of course. The commission of an unfair labor practice, even a technicality, is often relied on to show a lack of good faith bargaining.

The government’s subjective judgment of the content and course of collective bargaining distinguishes this process from the principles of common law commercial contracts.

Laws providing for exclusive representation, union security, and mandated forced bargaining distort the American contractual system and convert it into a governmentally sanctioned, supervised, and oftentimes coerced system that neglect the principles of private, voluntary exchange. Allowing individual workers to withhold a portion of union dues under the Beck decision is a minor remedy for the abuses wrought by compulsory collective bargaining. Permitting the employee discretion to withhold dues that would otherwise be spent on the union’s political, religious or social agenda acknowledges that there are boundaries to collective action. Beck is a recognition that there are limits in our society as to what citizens can compelled to do: that we are a nation dedicated to defending freedom and individual liberty.