¶ … Faith Bargaining
The company's unilateral implementation of the two new work rules without providing the union with prior notice or an opportunity to bargain did constitute a violation of the duty to bargain in good faith under the LMRA, as amended, because at least one of the two new rules -- that regarding bonus pay for perfect attendance -- was a mandatory subject of bargaining (Fecteau). Management attempted to circumvent the LMRA by applying a zipper clause, the language of which is neither clear nor unmistakable in terms of waving all bargaining rights. The Union could sue by claiming that the zipper clause only appears to be concerning material already stated in the contract and not new additions.
The purpose of the zipper clause is to effectively put an end to all bargaining between Union and company (Nakamura). Essentially it relieves both the Union and the company from engaging in any more negotiations over mandatory bargaining subjects that may be included or added to the contract during the term. Companies will apply a zipper clause in a contract when they know that they want to later add rules that they do not want to negotiate with the Union. The zipper clause can be used to allow them to do this, but the language of the zipper clause must be very precise and acknowledge that the Union and the company wave the right to bargain. Typically such clauses do not appear in contracts because Unions rarely agree to them. Instead, if a zipper clause appears it is less precise and clear and the Union does not wave its bargaining rights by acknowledging it (Nakamura).
The right to bargain in this case involves the mandatory subject of bonuses, but it could also be said to involve the testing of employees. There could be a case for either, but primarily and most clearly the case for mandatory bargaining rights applies to the issuance of bonuses. The NLRB clearly notes that...
However, "physical examinations" and "health rules" as well as "drug/alcohol testing" are also clearly noted in the mandatory bargaining list compiled by NLRB (Schwartz 97). Thus, the Union could make the case that base rules should be ones that the Union could negotiate.
First off, the new rule of the company dictating how employees are to be rewarded for perfect attendance by receiving an extra dollar per hour for a week of perfect attendance and an extra dollar and a half for a month's perfect attendance is an obvious attempt to institute a new bonus program. It could not be taken as otherwise. Why does the company state that it is not a mandatory subject for bargaining? Obviously, the company does not want to negotiate these terms. Management attempts to circumvent the Union's right to bargain by claiming that the "current contract language gave management the right to unilaterally implement the two rule changes ... even if they were" mandatory subjects. Thus, the management first attempts to assert that the subjects are not mandatory and then back-tracks and says that even if they are, the contract contains a zipper clause as well as other clauses that support the company's right to add new rules. The Union disagrees and has every right to disagree as the company is clearly trying to pull "a fast one" by alluding "Management's Rights" and the terms dictated under "Wages" and the zipper clause.
Still, this is only one interpretation of the case and others might disagree, and history has shown that interpretations are always differing when it comes to the law and its implementation. For example, there is the case of Provena Hospitals, which asserted that it had…
