Under the National Labor Relations Act (“NLRA” or “Act”), an employer must bargain collectively with the representative of its employees over matters affecting “wages, hours, and other terms and conditions of employment.” Generally, once the parties reach a good-faith impasse, the employer may implement any change in a mandatory subject reasonably contained within its final proposal. Employees may also engage in self-help remedies including a strike. An employer at a unionized workplace may not unilaterally change a mandatory subject of bargaining, even one not contained in a collective bargaining agreement, without first giving the union timely notice of the proposed changes and an opportunity to bargain about them. A union can waive its right to bargain over mandatory subjects during the term of a contract, but only if the waiver is “clear and unmistakable.”

In contrast, the law prohibits both the employer and the union from conditioning a collective bargaining agreement on the other party’s acceptance of a proposal on a permissive subject of bargaining. The bargaining parties also cannot make agreement on a permissive subject a condition to agreement on a mandatory subject. It is an unfair labor practice for either party to insist to impasse on a permissive subject of bargaining. Under certain circumstances, the insistence to impasse on bargaining demands about permissive bargaining subjects suspends the other party’s statutory bargaining obligation. It is also a violation of the Act for the union to strike or threaten to strike to compel agreement on a permissive subject of bargaining.

There are many instances where unions or employers want to reach agreement on permissive subjects of bargaining. It is fine for either party to make proposals on permissive topics of bargaining. However, insisting on those proposals to the point of impasse or making them part and parcel of a package deal is not permitted. It is an important and effective tool for musician representatives to be aware of the distinction between permissive and mandatory subjects of bargaining.

Some Mandatory Subjects of Bargaining That Might Surprise You: What constitutes “wages, hours and terms and conditions of employment” for purposes of deciding whether a subject is a mandatory or permissive subject of bargaining is determined on a case-by-case basis. Wages and hours are clearly covered by a duty to bargain. Those who attended the 2011 ICSOM Conference might remember three examples from “Delegate Duel” that constituted mandatory subjects of bargaining. First, we reviewed a Supreme Court case that held that the price of food in the vending machines at work is a mandatory subject of bargaining, even where those vending machines were owned by a third party. Second, we mentioned that the installation of video surveillance cameras in or around work or break areas is also a mandatory subject of bargaining. In addition, we noted that although benefits for employees who are already retired are not a mandatory subject of bargaining, retirement benefits for future retirees who are currently members of the bargaining unit are a mandatory subject of bargaining. Other less than obvious mandatory subjects of bargaining include, for example, employee background checks, discipline policies (including what constitutes grounds for discipline), free-meal policies, changes to policies regarding transportation to work, requirements that employees sign in and out of work, and relocation decisions. Insisting on retaining unilateral control over a mandatory subject of bargaining is also, in and of itself, a mandatory subject of bargaining and could constitute evidence of bad faith bargaining, depending on the circumstances.

Commonly seen unilateral changes in working conditions that may be unlawful because they involve mandatory subjects of bargaining include changes to policies such as harassment policies and work rules. By way of example, suppose in the second year of a three-year agreement, management suddenly decides to announce a work rule banning all iPads and cell phones onstage during rehearsals, claiming that they are a distraction to other musicians and an annoyance to the conductor. Is this a mandatory subject of bargaining? Most likely it is. It directly impacts the terms and conditions of employment. This sort of work rule change is not intrinsically within management’s rights. Employers need to bargain about changes in working conditions before implementing them. Most collective bargaining agreements contain dozens of rules regulating rehearsals, and this one is no different. The employer must bargain about changes to those rules, assuming the employer has not waived the right to make such changes during the midterm of a contract and assuming the union has not granted the employer an overly broad management rights clause that allowed the employer to make such unilateral changes.

And Now, Some Permissive Subjects That Might Surprise You: There are many permissive subjects of bargaining. Again, a permissive subject is one the parties may bargain about, but can’t insist on and don’t have to discuss at the bargaining table. A frequently encountered permissive topic is the scope of who is in the bargaining unit and the work encompassed in the bargaining unit. Determining the inclusion or exclusion of employees covered by the contract is a permissive topic of bargaining regardless of whether the unit was certified by the National Labor Relations Board (“NLRB”) or whether the employer voluntarily agreed to recognize the unit. The rationale behind finding this topic a permissive subject of bargaining is really to protect the union. For example, in one case where the company was found to violate the law when it insisted on changes that limited the scope of employees who were covered by the agreement, a court stated that if an employer could require bargaining over the scope of the unit, “an employer could use its bargaining power to restrict (or extend) the scope of union representation in derogation of employees’ guaranteed right to representatives of their own choosing.” Sometimes it is not clear on the face of a proposal that it is really affecting unit composition because the employer claims, for example, that it really addresses work assignments. However, if the sole effect of the proposal is to exclude a group of employees from the bargaining unit, it is a permissive subject of bargaining and neither party can bargain to impasse on it.

In addition to unit composition, other examples that have been found to be permissive subjects include pension benefits for persons who have already retired, matters relating to internal union procedures such as requiring a vote on the employer’s last offer or requiring employees to personally sign grievances, a clause seeking to define what work was within the unit, legal liability clauses requiring a union to accept legal liability for violations of no-strike provisions, and insisting on stenographers at negotiations or arbitrations.

Being in the Collective Bargaining Agreement Doesn’t Make a Subject Mandatory: Often, permissive subjects of bargaining are incorporated into a final collective bargaining agreement. Even if a permissive subject of bargaining is incorporated into the final agreement, it does not lose its character of being a permissive subject. The Supreme Court has held that, “By once bargaining and agreeing on a permissive subject, the parties, naturally, do not make the subject a mandatory topic of future bargaining.”

In sum, just because the contract has been signed and is in place does not mean that the duty to bargain disappears until the next round of negotiations. Whenever management seeks to introduce a new rule or policy during the term of the agreement, it may have a duty to bargain even where the rule or policy is not expressly addressed in any of the existing contract provisions. Failure to bargain before implementation of any new rule or policy may be an unfair labor practice.