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First National Maintenance: What is the Issue?

Must an employer, under its duty to bargain in good faith “with respect to wages, hours, and other terms and conditions of employment,” … negotiate with the certified representative of its employees over its decision to close a part of its business?.

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First National Maintenance: What is the Issue?

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  1. Must an employer, under its duty to bargain in good faith “with respect to wages, hours, and other terms and conditions of employment,” … negotiate with the certified representative of its employees over its decision to close a part of its business? . . . whether First National Maintenance Corporation's decision to terminate its Greenpark . . . operation and to discharge the workers employed in that operation was a decision with respect to "terms and conditions of employment" within the meaning of the Act, thus rendering its failure to negotiate with the union unlawful. First National Maintenance:What is the Issue?

  2. First National Maintenance • Decision to terminate Greenpark contract not a TCE • based on matters unrelated to labor cost • Three types of Mgmt Decisions • Indirect/Minimal effect on employment, substantial effect on er (Type I) • Effect solely on employment (Type II) • Substantial effect on employment and er (Type III) • Matter affecting employment must be amenable to resolution through CB

  3. First National Maintenance (cont.) • “Congress had no expectation that . . . the union . . . would become an equal partner in the running of the business. . .. (D3) • “Management must be free from constraints of bargaining process to the extent essential for the running of a profitable business” (D4) • What are these constraints? • Bargaining should be required if benefits to CB outweigh costs to management (D4)

  4. General Principles • Harm to er from negotiating over an economic partial shutdown outweighs potential benefit to labor relations and CB. • Possible need for secrecy to pursue business opportunities • Concern about actions of employees • Few CBA provisions limiting right to shut down • Importance of labor costs varies • Application to First National Maintenance • Termination of contract with Greenpark due solely to differences in fee, not to matters related to TCE • Contrasts with Fibreboard, where decision based solely on labor costs/TCE

  5. Two Kinds of Bargaining • Decision Bargaining • Bargaining over the decision itself • Obligation to bargain is per First National Maintenance • Effects Bargaining • Bargaining about the effects of a decision already made • Severance pay, transfer rights • Always mandatory, regardless of whether bargaining requited over the decision

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