The Scope of Mandatory Bargaining: A Critique and a Proposal

Abstract

This paper argues that the mandatory-permissive distinction in the scope of the duty to bargain collectively should be abandoned in favor of a policy of classifying all lawful subjects as mandatory. The author shows that in recent applications of the distinction by the NLRB and the courts, many subjects of interest to labor have been declared within the exclusive control of management. She argues that the rationales used by the Board and the courts in these decisions are not compelling, and the mandatory-permissive distinction is even less convincing when its current application is compared to the criteria of an ideal scope of bargaining. TN NLRB v. Wooster Div. of Borg-WarnerCorporation,' decided more than 25 years ago, the Supreme Court endorsed the NLRB's policy of distinguishing lawful subjects of collective bargaining as either mandatory or permissive. That case generated much controversy, and the distinction continues to be the subject of justifiable criticism and concern for several reasons. First, legal scholars generally agree that decisions identifying what is within or outside the scope of compulsory bargaining affect both the bargaining process and bargaining outcomes (Cox 1958;Klare 1982;St. Antoine

Technological Change and Collective Bargaining in Canada

“…Indeed, recent critiques of the distinction between mandatory and permissive subjects of bargaining under the US National Labour Relations Act have asserted that, under the Reagan Administration in particular, the scope of mandatory bargaining has been narrowed so that that technological change per se is effectively insulated from collective bargaining [4,5].…”

The Mandatory-Permissive Distinction and Collective Bargaining Outcomes

“…Antoine 1973;Harvard Law Review 1979). In the 1980s, debate about applications of the mandatorypermissive (M-P) distinction has intensified (Fenton 1981;Gacek 1981b;Harper 1982;Sockell 1986) in response to decisions removing issues of critical interest to unions from the mandatory scope of bargaining.' Central to the debate are * The authors are Associate Professors in the Graduate School of Business, Columbia University.…”

“…Some commentators have argued that the scope of the mandatory bargaining obligation has a substantial impact on bargaining (St. Antoine 1981;Sockell 1986), but others have asserted that it is simply a legal prescription that has little to do with the realities of bargaining (Dunlop 1953). To date, little is known about the actual effects of the M-P distinction in the private sector, partly because there is little or no systematic variation in how the M-P distinction is applied at any point in time that may be captured empirically.…”

“…In particular, issues such as , 195 NLRB 479 (1972). 9 A detailed analysis of decision-rules seemingly employed by the Board and the courts to accord mandatory and permissive status to issues is provided by Sockell (1986).…”

“…'0 Because these issues can critically and directly affect labor's interests, treating them as questions outside of the compulsory bargaining obligation has generated substantial criticism and concern that labor's interests will be neglected, among other things (Gacek 1981a(Gacek , 1981bSockell 1986;Zimaroski 1986). But is the classification of an issue as permissive likely to affect whether or not the issue is negotiated and the outcome a party is able to obtain?…”