Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
An employer whose employees are represented by a union violates section 8(a)(5) of the National Labor Relations Act if it “refuse[s] to bargain collectively” with the union. Section 8(d) of the Act defines “to bargain collectively” as “the performance of the mutual obligation of the employer and the [union] to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . .” Cases decided under these sections of the Act make clear that an employer must bargain with regard to pay and benefits, hours of work and overtime, seniority, disciplinary procedures, grievance procedures, job posting and bidding procedures, and the like. Equally clear, but perhaps less obvious, is that an employer must also bargain over union security provisions, such as union-shop and dues-checkoff clauses; such provisions are encompassed within the phrase “conditions of employment” in section 8(d) of the Act. Still less obvious, but important for employers to remember, is that bargaining unit employees’ access to the union agents and officials who represent them is also encompassed within the phrase “conditions of employment” and is therefore also a mandatory subject of bargaining. The National Labor Relations Board recently reaffirmed this last point in its decision in Oaktree Capital Management (Turtle Bay Resorts), 355 NLRB No. 207 (September 30, 2010) (pdf).
In Oaktree, the union’s contract covering employees at the employer’s resort in Hawaii expired in 2003 without a new contract having been negotiated. After expiration, the parties continued to abide by most of the provisions of the expired contract. Union business agents continued to visit the resort regularly to confer with employees, process grievances, collect dues, and meet with management. During the life of the contract, union business agents who visited the resort were allowed to park free of charge in the resort’s lot when they visited the resort on union business. In 2005, fourteen months after the contract had expired, resort management unilaterally terminated the practice of providing free parking to the union’s business agents. Management did not give the union an opportunity to bargain over the decision. The rescission of the free parking privilege occurred in the context of an ongoing union campaign to secure a new contract; that campaign included rallies, picketing, and a boycott of the resort. It was also accompanied by substantial employer efforts to interfere with the ability of union business agents to communicate with employees on resort property, including videotaping business agents and employees at rallies, having security personnel closely “shadow” business agents, and issuing trespass notices to business agents. The union filed unfair labor practice charges against the employer based on the interference with the efforts of business agents to communicate with employees. The Board found that much of the challenged conduct, including the rescission of the parking privilege for business agents, constituted unfair labor practices.
In holding that the employer’s unilateral rescission of the free parking privilege for union agents was an unfair labor practice, the Board explained that the parking privilege constituted a “condition of employment” within the meaning of section 8(d). Although the free parking privilege was not part of a collective bargaining agreement, it did constitute an established practice between the parties. As with any “condition of employment” with respect to which an established practice exists, an employer may not unilaterally change its practice with respect to that condition until it has provided a good faith opportunity for the union to bargain with respect to the proposed change.
The Board also emphasized that it is a unilateral material change in a policy permitting union representatives access to an employer’s premises that will violate Section 8(a)(5) The Board relied on the Administrative Law Judge’s finding that the rescission of the free parking privilege was indeed “material, substantial, and significant when considered in the context of the [employer’s] other unlawful conduct” – that is, its shadowing of union agents, issuance of trespass notices, and the like – and the Board found it therefore unnecessary to decide whether the rescission of the parking privilege alone would have been material. It is worth noting, however, that the underlying Administrative Law Judge’s opinion suggests that she would have found the rescission of parking privileges to be material even standing alone.
This case provides a useful reminder of union access rights and the bargaining process. Although union business agents have a basic right of access to the employer’s premises, employers can negotiate restrictions with respect to timing, extent, and reasons for access. Employers who are inclined to be generous with respect to access rights, or who allow access or privileges related to access that exceed the requirements of law or the collective bargaining agreement, must remember that they may not be able unilaterally to impose more limited access in the future unless they first bargain to impasse with the union with respect to the limitations.