Mandatory Subjects Of Bargaining

What Are Mandatory Subjects of Bargaining?
    Both the employer and the employee representative are required to bargain over "wages, hours, and other terms and conditions of employment." This has been defined over the years to include wages and fringe benefits, grievance procedures, arbitration, health and safety, nondiscrimination clauses, no-strike clauses, length of contract, management rights, discipline, seniority, and union security.
Wages, Hours, and Fringe Benefits
    These provisions are the most important to the average employee. The wages and hours clauses are subject to legal limitations, such as laws concerning minimum wage (state and federal) and consecutive hours (overtime, ICC regulations, and other pertinent laws).
    Possible fringe benefits are limited only by the imagination of the workers. Usual fringes are vacations, holidays, pensions, and health insurance. Others are sick pay, severance pay, reporting pay, day-care facilities, financial services, educational loans, and sabbaticals. All of these subjects are proper topics of the give and take of negotiations.

Health and Safety
    An increasing number of unions are negotiating health and safety provisions into their contracts. Typical provisions might establish the right of a union health and safety committee to make inspections and examine records, or the right of a worker to refuse unsafe work.

Non-discrimination clauses
    There is also a duty to bargain over elimination of discriminatory employment practices. A good non-discrimination clause can often provide the fastest remedy for a worker who is discriminated against by reason of age, race, sex, religion, disability, or national origin. This type of clause can be used as the basis for a grievance about any of these discrimination issues, including sexual harassment, discriminatory health benefits relating to pregnancy, or lower pay for traditionally "women's jobs."

Length of Contract
    An important item of every contract is how long it will be binding. This is strategically important for both sides and often must be determined in light of the rate of inflation, the financial health of the employer, and other similar considerations.

Management Rights
    Employers traditionally work to retain broad control over the operational activities of their business. Management rights usually include decisions such as corporate structure, production levels, and plant size. What is and what is not a "management right" is negotiable, and may be defined in the contract.

Discipline
    Contracts usually include a clause reserving the right of the employer to discipline workers by firing, suspension, notation on work records, and other forms of reprimand. Labor organizations traditionally try to limit this clause by requiring that "just cause" be shown for the discipline. Unions also work for procedural safeguards such as notice, hearings, and review in an attempt to protect the employee. These safeguards are often written in conjunction with the grievance procedure. The goal of the discipline clause is to insure that all facts are heard and that the punishment is not arbitrary or unfair.

Seniority
    The seniority clause is a method by which senior employees protect their jobs in work areas involving transfers, promotions, bumping, filling vacancies, and layoffs. Seniority rights can be established on a department or plant-wide basis and may be conditioned on the worker's ability to perform on the job. These clauses are often the most complicated in a contract and vary with the kind of work.

Dues Collection
    Union and management may negotiate a mutually agreeable means of union dues collection. The most convenient method is the "check-off" system by which the company automatically deducts the amount from the employee's paycheck. Such a practice is negotiable.

Union Security
    A labor organization often seeks to protect its strength by insisting on a union security clause. Long ago, the closed-shop agreement by which an employer could only hire members of a particular union was declared illegal. In Hawai'i, management and labor can negotiate a contract which requires that when a worker is hired into a job covered by the contract, he or she must join the union within a short period of time. This is called a union shop. It should be noted that this is an area where the National Labor Relations Act allows state control. A state may enact a so-called "right to work" law and declare union security clauses illegal. Hawai'i is one of 29 states that has no such law.
    A contract may also provide for a weaker form of union security. Under an agency shop, for example, no employee is required to join the union. However, any worker who does not join must pay a "service fee" or "fair share" to cover the expense the union incurs by representing all members of the bargaining unit, as it is legally required to do.
    These clauses vary greatly from contract to contract and industry to industry. Often they do not exist at all.

Grievance Procedure
    Because contracts cannot foresee every problem that will arise at work, most collective bargaining agreements include the establishment of a mutually agreeable procedure to settle differences in contract interpretation. Furthermore, the grievance procedure is usually the means a worker has of enforcing the contract.

Arbitration
    If the parties cannot agree on contract interpretation or proper enforcement, they may wish to call in an impartial outsider, or "arbitrator," to settle the question. This is only possible when an "arbitration clause" is negotiated into the contract. An arbitration clause provides an alternative to time-consuming lawsuits.
    This category of contract language will often define how the arbitrator will be selected, who will pay what share, and what the arbitrator's scope of authority will be. Often, both sides will agree that the arbitrator's decision is final or "binding." This means the courts cannot review the arbitrator's decision unless it is clearly contrary to law.

No-Strike Clause
    Most employers insist that the labor organization agree not to strike for the duration of a contract. Such an agreement is enforceable in court and enables the employer to plan production without fear of work stoppages. This makes "wildcat strikes" illegal and may even require that the union discipline the strikers.
    No-strike clauses have been interpreted to ban almost all strikes during the life of the contract, except strikes in response to abnormally dangerous working conditions (see the chapter on occupational safety and health). Strikes are still legal, of course, when the contract expires.