When management changes an established working condition or adopts a new policy that adversely affects employees, stewards should alert union leaders quickly. By submitting a demand to bargain or filing a grievance, the union may be able to stop, modify, or at least delay harmful developments. Pressure tactics such as petitions, rallies, and picket lines add leverage.

NO UNILATERAL CHANGES

Employer bargaining duties do not end with the execution of a labor agreement. During the term of the contract, before making a material change in a matter not fixed by the agreement, the employer must provide the union timely notice and a meaningful opportunity to bargain. (Matters fixed by contract language may not be changed even if the employer offers to bargain.)

For example, even if the contract does not have language regulating workplace safety, management may not adopt a new safety rule without notifying the union ahead of time and, if the union requests, bargaining the change to agreement or a good-faith impasse.

Unfair Labor Practice charge. A policy or rule that is instituted without consultation with the union is called a “unilateral change.” Such changes violate Section 8(a)(5) of the National Labor Relations Act. If the union files a ULP charge within six months, the National Labor Relations Board can order the employer to rescind the change, compensate employees for any lost wages or benefits, remove any discipline imposed as a result of the change, and bargain in good faith before reinstituting the policy or condition.

BARGAINING SUBJECTS

For bargaining purposes, the NLRB divides workplace matters into two categories: “mandatory”and “permissive.” The categories determine the scope of negotiations that the union can insist on before a change is finalized. If the change concerns a mandatory bargaining subject, the employer must debate both the reasons for the decision and its effect on employees (“decisional and effects bargaining”). If the change concerns a permissive subject, the employer need only bargain on the effects of the change on employees.

Mandatory subjects. Mandatory subjects are terms or conditions that directly and vitally affect bargaining unit members. Examples include attendance policies, bonus programs, cafeteria and vending machine policies, and compulsory overtime rules.

Permissive subjects. Permissive subjects are terms or conditions that have an indirect impact on employees or lie “at the core of entrepreneurial control.” Examples include advertising policies, automation decisions not based on labor costs, selecting supervisors, and hiring additional persons to existing positions. An employer can make changes in permissive subjects without debating the reasons with the union. But that does not mean it can implement the change unilaterally. If the change has a substantial impact on the working conditions, wages, benefits, or job security of employees in the bargaining unit, the employer must give the union notice and bargain on the effects before taking action.