Collective Bargaining Process Checklist (Employer)

Collective Bargaining Process Checklist (Employer)

This checklist for employers outlines the collective bargaining process and the employer’s role in it. For more information about an employer’s collective bargaining obligations, see Satisfying the Duty to Bargain in Good Faith; Providing Notice when Intending to Terminate or Modify a Collective Bargaining Agreement; and Collective Bargaining Preparation Checklist (Employer).

Comply with Notice Provisions

If you seek to terminate or modify a collective bargaining agreement, you generally must satisfy certain notice requirements:

(1)Provide notice. Provide written notice to the union at least sixty days before the existing agreement expires. The employer also may have a duty to notify the Federal Mediation and Conciliation Service and any appropriate state mediation agency of the existence of the non-renewal of the collective bargaining agreement. See Providing Notice when Intending to Terminate or Modify a Collective Bargaining Agreement.

(2)State the employer’s intention. The notice must inform the union that you intend to negotiate a successor agreement.

(3)Note unique health care industry requirements. If you are in the health care industry, note the special notice provisions that apply only to that industry, including longer notice periods. For more information, see Providing Notice when Intending to Terminate or Modify a Collective Bargaining Agreement.

(4)Notify the FMCS of failure to agree. If the parties don’t reach an agreement within thirty days of the written notice, the employer may have a duty to notify the Federal Mediation and Conciliation Service and any appropriate state mediation agency of the existence of the dispute before taking economic action.

Prepare for Bargaining

For guidance for employers on how to prepare for bargaining, see Collective Bargaining Preparation Checklist (Employer).

Participate in Initial Bargaining Session and Exchange Initial Proposals

(1)Establish ground rules. Begin the initial bargaining session by discussing both parties’ proposed ground rules for the negotiations.

(2)Exchange bargaining proposals. Exchange first sets of bargaining proposals with the union.

(3)Schedule further sessions. Set dates for subsequent bargaining sessions.

Participate in Successive Bargaining Sessions and Record Tentative Agreements

(1)Repeat the process. The parties will continue to meet, and to exchange and discuss revised proposals, as they get closer to reaching an agreement.

(2)Record agreements in writing. As the parties reach tentative agreements on discrete issues, you should write them up in detailed, specific language to help minimize later disputes as to provision language that would require revisiting issues and language that have already been “hashed out.” Don’t draft tentative agreements with just general ideas or non-specific concepts.

Navigate Late Stages of Negotiations

The negotiation process may ultimately result in an outcome other than mutual agreement:

(1)Mediation. Seek the help of a third party to mediate a settlement between the parties.

(2)Impasse. The employer can unilaterally implement its final bargaining proposal but an employer should use this option only after careful consideration and with legal counsel. See Dealing with a Bargaining Impasse.

(3)Public Campaigns. Implement a public relations campaign to pressure the other side, but note that NLRB decisional law imposes certain constraints. For example, the employer should avoid making statements in the media that could be argued to be attempts to circumvent a union or falsely place blame on it for bargaining disagreements, because such statements are sometimes considered evidence of bad faith bargaining. See, e.g., General Elec. Co., 150 NLRB 192, 196, 218-28, 273-84 (1964). Compare United Technologies Corp., 274 NLRB 1069, 1071-75, enf’d, 789 F.2d 121 (2nd Cir. 1985).

(4)Strike. If the existing contract includes a no-strike clause, the union can strike as soon as the contract expires.

(5)Lockout. An employer may consider preventing employees from working to pressure bargaining unit members, particularly if it anticipates a strike.

(6)Extension. The parties may agree to a short-term or long- term extension to allow more time for negotiations or simply to push the issues out in time.

Finalizing the Agreement

Once the parties reach an agreement, they generally take several steps to formalize it:

(1)Prepare the formal collective bargaining agreement document. The parties generally agree one side will draft the agreement.

(2)Ratify the collective bargaining agreement. Generally, the union’s constitution and by-laws determine the rules for employee ratification of the agreement. In some circumstances, a non-ratification vote may be tied to an authorization for strike action or union authorization to accept an agreement without ratification.

(3)Execute the collective bargaining agreement. The parties’ duty to bargain in good faith generally is interpreted to include the obligation to execute a written collective bargaining agreement after agreement to terms.

Administer the Agreement

(1)Train personnel. Train the managerial employees and supervisors responsible for implementing the collective bargaining agreement to familiarize them with the new contract provisions and advise them of their responsibilities under the agreement.

(2)Update policy documents. Revise employer policy documents as necessary to conform to the new agreement.

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Created: Oct 2017